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PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER (UNDER LABOR LAW 240 (1)) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) claim based upon a fall from a ladder. The court noted that the property owner was liable even if the property owner was unaware the plaintiff had been hired by a tenant (here a deli, also a defendant). The deli owner had provided the A-frame ladder which moved side to side and fell to the ground. The court noted that the defendant owner’s opposition papers were entirely hearsay, which cannot defeat summary judgment:

Plaintiff’s fall from an unsecured ladder establishes a violation of the statute …  for which defendant property owner is liable, even if the tenant contracted for the work without the owner’s knowledge … . Plaintiff sufficiently identified the location of the deli at his deposition, and also stated that the deli owner offered him money to paint the sign.

In opposition, defendant failed to raise an issue of fact sufficient to defeat summary judgment. The statements of the owner of the deli and the deli worker were unsworn and inadmissible as hearsay. It should be noted that in the over 2 ½ years since the statements were taken, defendant never attempted to obtain affidavits from these witnesses or attempted to depose them, proffering their statements only after plaintiff had moved for summary judgment. Indeed, in its responses to discovery requests, defendant affirmatively represented that it was “not presently in possession of any statements from witnesses to the accident.”

While hearsay statements may be offered in opposition to a motion for summary judgment, hearsay statements cannot defeat summary judgment “where it is the only evidence upon which the opposition to summary judgment is predicated” … . Gonzalez v 1225 Ogden Deli Grocery Corp., 2018 NY Slip Op 01280, First Dept 2-27-18

LABOR LAW-CONSTRUCTION LAW (PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER UNDER LABOR LAW 240 (1) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT))/EVIDENCE (SUMMARY JUDGMENT, HEARSAY, PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER UNDER LABOR LAW 240 (1) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT))/HEARSAY (SUMMARY JUDGMENT, PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER UNDER LABOR LAW 240 (1) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT))/SUMMARY JUDGMENT (HEARSAY, PROPERTY OWNER LIABLE FOR PLAINTIFF’S FALL FROM A LADDER UNDER LABOR LAW 240 (1) WHILE WORKING FOR A TENANT, EVEN IF THE OWNER WAS NOT AWARE THE TENANT HIRED THE PLAINTIFF, WHERE ONLY HEARSAY EVIDENCE IS OFFERED IN OPPOSITION TO SUMMARY JUDGMENT, A QUESTION OF FACT IS NOT RAISED (FIRST DEPT))

LADDER MOVED FOR NO APPARENT REASON, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) ACTION (FIRST DEPT).

The First Department determined plaintiff’s summary judgment motion on his Labor Law 240 (1) action was properly granted. Plaintiff alleged the ladder he was standing on suddenly moved:

Plaintiff established his entitlement to partial summary judgment on the Labor Law § 240(1) claim through his testimony that he was caused to fall to the ground when the unsecured ladder on which he was standing suddenly shifted and kicked out from underneath him … .

Defendants’ opposition failed to raise a triable issue of fact. None of coworkers who provided affidavits actually witnessed plaintiff fall from the ladder, and they did not contradict his testimony that the ladder suddenly moved. Although defendants also submitted an unsworn accident report containing a statement from a coworker that plaintiff lost his balance and fell, this did not contradict plaintiff’s consistent testimony that he fell because the ladder suddenly moved… .. Furthermore, defendants’ reliance on O’Brien v Port Auth. of N.Y. & N.J. (29 NY3d 27 [2017]) is misplaced because that case, which found an issue of fact about whether a slippery exterior staircase provided adequate protection to the plaintiff, left intact the presumption that Labor Law § 240(1) is violated where, as here, a ladder collapses or malfunctions for no apparent reason … . Rom v Eurostruct, Inc., 2018 NY Slip Op 01262, First Dept 2-22-18

LABOR LAW-CONSTRUCTION LAW (LADDER MOVED FOR NO APPARENT REASON, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) ACTION (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, LADDER MOVED FOR NO APPARENT REASON, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) ACTION (FIRST DEPT))

UNSECURED, DAMAGED LADDER WOBBLED AND PLAINTIFF FELL, PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action was properly granted. Plaintiff testified the ladder he was using was unsecured and damaged. The ladder wobbled causing plaintiff to fall

[Defendant’s] submission of an ambiguous affidavit from plaintiff’s supervisor was insufficient to rebut plaintiff’s prima facie showing. Notably, the supervisor did not address the fact that he was at the scene of the accident shortly after plaintiff fell, and provided only vague references to other available ladders, without addressing plaintiff’s testimony that other workers were using those ladders  … . Furthermore, [defendant’s] argument that questions of fact exist as to whether plaintiff was the sole proximate cause of his accident is unavailing given that [defendant] failed to make a showing that adequate safety devices were provided to plaintiff … . Pena v Jane H. Goldman Residuary Trust No. 1, 2018 NY Slip Op 01255, First Dept 2-22-18

LABOR LAW-CONSTRUCTION LAW (UNSECURED, DAMAGED LADDER WOBBLED AND PLAINTIFF FELL, PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, UNSECURED, DAMAGED LADDER WOBBLED AND PLAINTIFF FELL, PLAINTIFF’S SUMMARY JUDGMENT MOTION ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED (FIRST DEPT))

8 TO 12 INCH HEIGHT DIFFERENTIAL NOT ACTIONABLE, LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s Labor Law 240 (1) cause of action should have been dismissed. Plaintiff was injured when a cart he was moving slipped off a makeshift ramp. The height differential was 8 to 12 inches, which did not present an actionable elevation-related risk:

Plaintiff was allegedly injured in the course of rolling a four-wheeled cart filled with about 100 to 200 pounds of materials over an unsecured, makeshift plywood ramp which bridged an approximately five- or six-inch gap between a truck bed to a loading dock, when the ramp slipped out of place and landed on the truck bed, and the cart descended, pulling on plaintiff’s arms and causing injuries. Plaintiff admitted that the vertical distance from the surface of the truck bed to the surface of the dock was about 8 to 12 inches, which under the circumstances, does not constitute a physically significant elevation differential covered by Labor Law § 240(1) … . Plaintiff’s injury was not proximately caused by a failure to protect him from any elevation-related risks posed by the distance of almost four feet from the floor to the surface of the dock, since plaintiff remained on the dock while the cart became wedged in the gap between the truck bed and the dock, and there is no evidence that the gap was large enough to pose a significant risk of any hazardous descent to the floor. Sawczyszyn v New York Univ., 2018 NY Slip Op 01120, First Dept 2-15-18

LABOR LAW-CONSTRUCTION LAW (8 TO 12 INCH HEIGHT DIFFERENTIAL NOT ACTIONABLE, LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/ELEVATION-RELATED RISK (LABOR LAW-CONSTRUCTION LAW, 8 TO 12 INCH HEIGHT DIFFERENTIAL NOT ACTIONABLE, LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

EVIDENCE OF DEBRIS ON FLOOR WAS SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER DEFENDANTS WERE LIABLE UNDER LABOR LAW 241(6) AND 200, PLAINTIFF STEPPED INTO A HOLE BUT DID NOT KNOW WHETHER THE HOLE WAS OBSCURED BY THE DEBRIS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined defendants were not entitled to summary judgment on the Labor Law 241(6) and Labor Law 200 causes of action. Plaintiff testified he stepped into a hole. He testified the floor was strewn with debris but he did not know if the hole was covered by debris. The court noted that a defendant need not supervise or control plaintiff’s work to be liable under Labor Law 200:

In support of his Labor Law § 241(6) claim against the owner defendants, plaintiff relies 12 NYCRR 23-1.7(e)(2), which states: “Working Areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar as may be consistent with the work being performed.”

… Although plaintiff could not state with certainty whether or not the garbage and debris actually covered the hole, when his extensive deposition testimony is viewed in its entirety, an inference may be drawn that strewn garbage and debris obscured his view of the floor and hid the hole from him, even if it did not actually cover it, thereby creating a hazardous condition. …

“Where an existing defect or dangerous condition caused the injury, liability [under Labor Law § 200] attaches if the owner or general contractor created the condition or had actual or constructive notice of it” … . Proof of the defendants’ supervision and control over a plaintiff’s work is not required … . Licata v AB Green Gansevoort, LLC, 2018 NY Slip Op 01023, First Dept 2-13-18

LABOR LAW-CONSTRUCTION LAW (EVIDENCE OF DEBRIS ON FLOOR WAS SUFFICIENT TO RAISE A QUESTION OF FACT WHETHER DEFENDANTS WERE LIABLE UNDER LABOR LAW 241(6) AND 200, PLAINTIFF STEPPED INTO A HOLE BUT DID NOT KNOW WHETHER THE HOLE WAS OBSCURED BY THE DEBRIS (FIRST DEPT))

PLAINTIFF’S DECEDENT WAS PROVIDED WITH A SAFETY LINE AND A HARNESS WHICH HE WAS NOT USING WHEN HE FELL THROUGH A SKYLIGHT, FAILURE TO USE THE SAFETY LINE WAS THE SOLE PROXIMATE CAUSE OF THE FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that defendants’ motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted. Plaintiff’s decedent was provided with a harness and told to remain tied off at all times. Plaintiff fell through an opening in the roof when he was not tied off:

Contrary to plaintiff’s argument, 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 … .

Defendants established prima facie that plaintiff’s decedent was the sole proximate cause of his accident with evidence that a harness and safety rope system was in place on the roof, that the decedent had been instructed to remain tied off at all times while on the roof, and that he could not have reached the skylight through which he fell if he had remained tied off. Guaman v City of New York, 2018 NY Slip Op 01025, First Dept 2-13-15

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S DECEDENT WAS PROVIDED WITH A SAFETY LINE AND A HARNESS WHICH HE WAS NOT USING WHEN HE FELL THROUGH A SKYLIGHT, FAILURE TO USE THE SAFETY LINE WAS THE SOLE PROXIMATE CAUSE OF THE FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S DECEDENT WAS PROVIDED WITH A SAFETY LINE AND A HARNESS WHICH HE WAS NOT USING WHEN HE FELL THROUGH A SKYLIGHT, FAILURE TO USE THE SAFETY LINE WAS THE SOLE PROXIMATE CAUSE OF THE FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SAFETY LINE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF’S DECEDENT WAS PROVIDED WITH A SAFETY LINE AND A HARNESS WHICH HE WAS NOT USING WHEN HE FELL THROUGH A SKYLIGHT, FAILURE TO USE THE SAFETY LINE WAS THE SOLE PROXIMATE CAUSE OF THE FALL, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))

QUESTIONS OF FACT WHETHER (1) DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, (2) WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND (3) WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT).

The Fourth Department, over a two-justice partial dissent, determined that there were questions of fact whether defendant BGB was liable under Labor Law 240 (1) and 241 (6) as a general contractor or agent of the owner, and whether BGB was liable under Labor Law 200 because of its control over the work site and notice of the dangerous condition. In addition the Fourth Department determined there was a question of fact whether the lintel over a doorway fell on plaintiff because of the absence of a safety device (Labor Law 240 (1)). The dissent argued that no safety device was required as a matter of law. With respect to whether BGB was a general contractor or agent of the owner, and whether BGB could be liable under Labor Law 200, the court wrote:

“An entity is a contractor within the meaning of Labor Law § 240 (1) and § 241 (6) if it had the power to enforce safety standards and choose responsible subcontractors . . . , and an entity is a general contractor if, in addition thereto, it was responsible for coordinating and supervising the . . . project” … . In addition, an entity that serves as “a construction manager may be vicariously liable as an agent of the property owner . . . where the manager had the ability to control the activity which brought about the injury’ “… . Here, BGB’s own submissions raise triable issues of fact whether BGB had the authority to supervise or control the injury-producing work, and thus whether it may be held liable as a general contractor or an agent of the owner … .

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With regard to plaintiff’s Labor Law § 200 and common-law negligence causes of action against BGB, we conclude that, contrary to BGB’s contention on its cross appeal, it failed to eliminate triable issues of fact whether it had ” control over the work site and actual or constructive notice of the dangerous condition’ ” that allegedly caused plaintiff’s injuries … . Robinson v Spragues Wash. Sq., LLC, 2018 NY Slip Op 01007, Fourth Dept 2-9-18

LABOR LAW -CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT))/GENERAL CONTRACT (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT))/OWNER, AGENT OF (LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT))/FALLING OBJECTS LABOR LAW-CONSTRUCTION LAW, QUESTIONS OF FACT WHETHER DEFENDANT WAS A GENERAL CONTRACTOR OR AGENT OF THE OWNER, WHETHER DEFENDANT HAD CONTROL OVER THE WORK SITE AND NOTICE OF A DANGEROUS CONDITION, AND WHETHER THE INJURY WAS THE RESULT OF THE ABSENCE OR FAILURE OF A SAFETY DEVICE IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION (FOURTH DEPT))

PLAINTIFF’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED IN THIS LABOR LAW 240(1) ACTION, PLAINTIFF WAS ATTEMPTING TO EMPTY A 300 POUND BIN INTO A DUMPSTER, FIVE TO SEVEN FOOT HEIGHT DIFFERENTIAL NOT DE MINIMUS (FIRST DEPT).

The First Department determined plaintiff’s motion for summary judgment in this Labor Law 240(1) action was properly granted. Plaintiff was attempting to lift a 300-pound laundry bin to empty debris into a dumpster. There were no safety devices and the five-to-seven foot height differential was not de minimus. Miller v 177 Ninth Ave. Condominium, 2018 NY Slip Op 00905, First Dept 2-8-18

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF’S SUMMARY JUDGMENT MOTION PROPERLY GRANTED IN THIS LABOR LAW 240(1) ACTION, PLAINTIFF WAS ATTEMPTING TO EMPTY A 300 POUND BIN INTO A DUMPSTER, FIVE TO SEVEN FOOT HEIGHT DIFFERENTIAL NOT DE MINIMUS (FIRST DEPT))

PLAINTIFF TESTIFIED HE DID NOT CHECK THE POSITION OR LOCKING MECHANISM OF THE A-FRAME LADDER HE FELL FROM, PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 240(1) ACTION SHOULD NOT HAVE BEEN GRANTED, DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice well-reasoned dissent, determined plaintiff’s motion for summary judgment in this Labor Law 240(1) action should not have been granted. Plaintiff was injured when he fell from the A-frame ladder. Plaintiff testified that he might not have checked the positioning of the ladder or the locking mechanism:

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We agree with defendant that Supreme Court erred in granting plaintiff’s motion for partial summary judgment on the issue of liability under Labor Law § 240 (1). “In order to establish his entitlement to judgment on liability as a matter of law, plaintiff was required to show that the statute was violated and the violation proximately caused his injury’ “… . Plaintiff did not know why the ladder wobbled or shifted, and he acknowledged that he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so. We thus conclude that plaintiff failed to meet his initial burden on the motion. “[T]here is a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident” … .

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From the dissent: The fact that plaintiff could not identify why the ladder shifted does not undermine his entitlement to partial summary judgment because a plaintiff who falls from a ladder that “malfunction[s] for no apparent reason” is entitled to “a presumption that the ladder . . . was not good enough to afford proper protection” … . Although plaintiff testified at his deposition that he did not recall whether he checked the positioning of the ladder or checked that it was “locked into place,” he also testified that the ladder was upright and “fully open” near the middle of a small room, and we conclude that it would be unduly speculative for a jury to infer from plaintiff’s testimony that the sole proximate cause of the accident was his alleged failure to check its positioning or its locking mechanism … . Bonczar v American Multi-Cinema, Inc., 2018 NY Slip Op 00712, Fourth Dept 2-2-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF TESTIFIED HE DID NOT CHECK THE POSITION OR LOCKING MECHANISM OF THE A-FRAME LADDER HE FELL FROM, PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 240(1) ACTION SHOULD NOT HAVE BEEN GRANTED, DISSENT DISAGREED (FOURTH DEPT))/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF TESTIFIED HE DID NOT CHECK THE POSITION OR LOCKING MECHANISM OF THE A-FRAME LADDER HE FELL FROM, PLAINTIFF’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 240(1) ACTION SHOULD NOT HAVE BEEN GRANTED, DISSENT DISAGREED (FOURTH DEPT))

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THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT). ​

The Fourth Department determined the Labor Law 240(1), 241(6) and 200 causes of action were properly dismissed, but the common law negligence cause of action should not have been dismissed. Plaintiff, a funeral director, was inspecting a grave which had been covered with plywood when he stepped on the plywood and fell into the grave. The Labor Law causes of action did not apply because plaintiff was not engaged in any relevant work at the time of the fall. However there were questions of fact whether defendants created or had notice of a dangerous condition:

​

With respect to Labor Law § 240 (1), defendants met their burden of establishing as a matter of law that plaintiff “was neither among the class of workers . . . nor performing the type of work . . . that Labor Law § 240 (1) is intended to protect” … , and plaintiffs failed to raise a triable issue of fact… . Defendants further established that plaintiff was not entitled to the protection of Labor Law § 241 (6) inasmuch as his inspection of the grave site in his capacity as a funeral director had no direct connection with the alteration or excavation work … , and plaintiffs failed to raise a triable issue of fact … . Finally, the court properly granted summary judgment dismissing the Labor Law § 200 claim because, while that statute is not limited to construction work … , it does not apply where, as here, the plaintiff was “not permitted or suffered to work on a building or structure at the accident site” … .

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… [D]efendants “were required to establish as a matter of law that they did not exercise any supervisory control over the general condition of the premises or that they neither created nor had actual or constructive notice of the dangerous condition on the premises”… . Defendants’ own submissions establish that each had some level of supervisory control over the premises. Moreover, it is undisputed that [defendant] Wolcott dug the grave and placed plywood over it, thus creating and having actual notice of the condition that plaintiffs allege was dangerous. Further, while [defendant] Oakwood established that it did not create the dangerous condition, it “failed to establish as a matter of law that the condition was not visible and apparent or that it had not existed for a sufficient length of time before the accident to permit [Oakwood] or [its] employees to discover and remedy it,” and it thereby failed to establish that it lacked constructive notice of it … . Solecki v Oakwood Cemetery Assn., 2018 NY Slip Op 00692, Fourth Dept 2-2-18

 

LABOR LAW-CONSTRUCTION LAW (THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND/OR NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT))/NEGLIGENCE (THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND/OR NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT))/SLIP AND FALL (THE LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION WERE PROPERLY DISMISSED BECAUSE PLAINTIFF WAS NOT INVOLVED IN THE RELEVANT WORK, HOWEVER THE COMMON LAW NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED BECAUSE IT WAS BASED ON THE CREATION AND/OR NOTICE OF A DANGEROUS CONDITION (FOURTH DEPT))

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