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CONSTRUCTION MANAGER DID NOT EXERCISE SUFFICIENT CONTROL TO BE LIABLE UNDER LABOR LAW 240(1) (SECOND DEPT).

The Second Department determined plaintiff’s Labor Law 240(1) cause of action against the construction manager was properly dismissed. Plaintiff fell from a ten-foot-high stack of blasting mats. The construction manager demonstrated it did not exercise supervisory control over plaintiff’s work or site safety:

A construction manager of a work site is generally not responsible for injuries under Labor Law § 200, § 240(1), or § 241(6) unless it functions as an agent of the property owner or general contractor in circumstances where it has the ability to control the activity which brought about the injury …  “A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured”… . An agent’s liability is limited “to those areas and activities within the scope of the work delegated or, in other words, to the particular agency created” … .

Here, the construction management services contract … provided that the defendants were responsible for coordinating the work relating to the … project, namely liaising with contractors to ensure that the project was completed in accordance with cost, time, safety, and quality control requirements and reporting … . However, the contract did not confer upon the defendants the authority to control the methods used by the contractors, including the plaintiff’s employer, to complete their work. The defendants were authorized only to review and monitor safety programs and requirements and make recommendations, provide direction to contractors regarding corrective action to be taken if an unsafe condition was detected, and stop work only in the event of an emergency. The parties’ deposition testimony also demonstrated that the defendants did not have control or a supervisory role over the plaintiff’s day-to-day work and that they did not assume responsibility for the manner in which that work was conducted. Lamar v Hill Intl., Inc., 2017 NY Slip Op 06167, Second Dept 8-16-17

 

LABOR LAW-CONSTRUCTION LAW (CONSTRUCTION MANAGER DID NOT EXERCISE SUFFICIENT CONTROL TO BE LIABLE UNDER LABOR LAW 240(1) (SECOND DEPT))CONSTRUCTION MANAGER (LABOR LAW-CONSTRUCTION LAW, CONSTRUCTION MANAGER DID NOT EXERCISE SUFFICIENT CONTROL TO BE LIABLE UNDER LABOR LAW 240(1) (SECOND DEPT))

LABOR LAW 240(1) NOT APPLICABLE TO INJURY FROM A PORTION OF A FENCE WHICH FELL ON PLAINTIFF (SECOND DEPT).

The Second Department determined defendant property owner was entitled to summary judgment dismissing the Labor Law 240(1) cause of action. Plaintiff alleged a portion of a plywood fence around the work site fell on him. The “falling object” provisions of the Labor Law 240(1) did not apply:

To prevail on a cause of action pursuant to section 240(1) 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 automatically apply simply because an object fell and injured a worker” … . In support of their cross motion, the defendants made a prima facie showing of their entitlement to summary judgment dismissing the Labor Law § 240(1) cause of action by demonstrating that the plywood fence was not an object being hoisted or that required securing for the purpose of the undertaking, and that it did not fall because of the absence or inadequacy of an enumerated safety device … . Berman-Rey v Gomez, 2017 NY Slip Op 06151, 2nd Dept 8-16-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240(1) NOT APPLICABLE TO INJURY FROM A PORTION OF A FENCE WHICH FELL ON PLAINTIFF (SECOND DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 240(1) NOT APPLICABLE TO INJURY FROM A PORTION OF A FENCE WHICH FELL ON PLAINTIFF (SECOND DEPT))

LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE MEANS AND METHODS OF PLAINTIFF’S WORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s Labor Law 200 cause of action should not have been dismissed as there was a question of fact whether defendant (Plaza) had the authority to control the means and methods of plaintiff’s work at the site. The scaffold on which plaintiff was standing tipped when a wheel went into a space in the floor created by the removal of a tile by an electrical contractor who was installing wiring beneath the floor:

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Where, as here, a claim arises out of the means and methods of the work, a defendant may be held liable for common-law negligence or a violation of Labor Law § 200 “only if he or she had the authority to supervise or control the performance of the work'” … . “A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” … .

Here, the defendants failed to establish, prima facie, that Plaza did not have the authority to exercise supervision and control over the subject work. The defendants’ submissions demonstrated that Plaza, as the construction manager, had a project superintendent at the work site on a daily basis who was responsible for job coordination and safety supervision. Plaza had the authority to stop work if a particular activity or condition was unsafe, and to regulate which workers and equipment were allowed in particular areas of the work site. Moreover, Plaza’s project superintendent held weekly meetings with every subcontractor. Although the superintendent testified at his deposition that he gave directions to the subcontractors’ supervisors, rather than to the workers themselves, he could tell a supervisor to immediately relay a safety-related instruction to a worker at any given time. Under these circumstances, the defendants’ submissions failed to eliminate all triable issues of fact as to whether Plaza was acting as the general contractor and had the authority to supervise and control the manner in which the plaintiff performed his work … . Caban v Plaza Constr. Corp., 2017 NY Slip Op 05931, Second Dept 8-2-17

 

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE MEANS AND METHODS OF PLAINTIFF’S WORK (SECOND DEPT))/MEANS AND METHODS OF WORK (LABOR LAW-CONSTRUCTION LAW, LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED, QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE MEANS AND METHODS OF PLAINTIFF’S WORK (SECOND DEPT))

ONE DEFENDANT ENTITLED TO HOMEOWNER’S EXEMPTION, THE OTHER DID NOT EXERCISE CONTROL OVER THE WORK, LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department determined the defendants’ motion for summary judgment in this Labor Law 240(1), 241 (6) and 200 action should have been granted. The defendants are husband (Joel Mendlovits) and wife (Malka Mendloits). Malka owns the house where plaintiff was injured and was entitled to the homeowner’s exemption from liability under the Labor Law. Joel, who did not own the house, hired the company for which the injured plaintiff worked. Joel was entitled to summary judgment because he was not a contractor or agent within the meaning of the Labor Law, nor did he exercise and control over plaintiff’s work:

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Joel established that he did not possess the requisite authority to supervise or control the work being done to support liability under Labor Law §§ 240(1) and 241(6). He hired All Care to perform stucco work on the home, but did not instruct All Care or the plaintiff how or when to do the work and did not provide them with any tools, materials, or safety equipment. The plaintiff received instructions on when, where, and how to perform the work from All Care and never spoke to Joel, who supervised the progress of the work only to the extent of making sure it was getting done. Such general supervision is insufficient to impose liability under Labor Law §§ 240(1) or 241(6) … . …

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To be held liable pursuant to Labor Law § 200 or for common-law negligence where, as here, the plaintiff’s claim arises out of the methods or means of the work, “recovery against the owner or general contractor cannot be had . . . unless it is shown that the party to be charged had the authority to supervise or control the performance of the work” … . Rodriguez v Mendlovits, 2017 NY Slip Op 05988, Second Dept 8-2-17

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LABOR LAW-CONSTRUCTION LAW (ONE DEFENDANT ENTITLED TO HOMEOWNER’S EXEMPTION, THE OTHER DID NOT EXERCISE CONTROL OVER THE WORK, LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))/HOMEOWNER’S EXEMPTION (LABOR LAW-CONSTRUCTION LAW, ONE DEFENDANT ENTITLED TO HOMEOWNER’S EXEMPTION, THE OTHER DID NOT EXERCISE CONTROL OVER THE WORK, LABOR LAW 240(1), 241(6) AND 200 CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT))

ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT.

The First Department determined defendant’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action was properly denied. Plaintiff (Giordano), who was wearing a harness and double lanyard, fell 30 feet from a scaffold when he stepped on a pipe brace which gave way. Although plaintiff had unhooked the lanyard, there was a question of fact whether the scaffold provided a proper method for tying off the lanyard:

“[T]he fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240(1),” and when “there are questions of fact as to whether the [structure] provided adequate protection,” summary judgment is not warranted … . In this case, plaintiff Paul Giordano fell 30 feet from scaffolding during construction on the Freedom Tower at 1 World Trade Center, when he stepped on a pipe brace that suddenly gave way. Although he was wearing a harness and double lanyard, the record presents issues of fact as to whether the scaffolding itself provided adequate anchoring points at which to tie off, and whether Giordano could have used his double lanyard to remain tied off at all times. Thus, under these circumstances, summary judgment to either party on the Labor Law § 240(1) claim, and the § 241(6) claim premised on a violation of Industrial Code (12 NYCRR) § 23-1.16, is precluded by issues of fact as to whether Giordano was provided with “proper fall protection, namely, an appropriate place to . . . attach his harness” … . … Because there are issues of fact as to whether Labor Law § 240(1) was violated, the issue of whether Giordano was the sole proximate cause of the accident (because he unhooked his lanyard) cannot be determined as a matter of law … . Giordano v Tishman Constr. Corp., 2017 NY Slip Op 05796, 1st Dept 7-25-17

LABOR LAW-CONSTRUCTION LAW (SCAFFOLDS, ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, LTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)/LANYARDS (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF’S LANYARD WAS UNHOOKED AT THE TIME HE FELL, THERE WAS A QUESTION OF FACT WHETHER THE SCAFFOLD PROVIDED A PROPER WAY TO TIE OFF THE LANYARD 1ST DEPT)

QUESTION OF FACT WHETHER PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE OR REPAIR COVERED BY LABOR LAW 240 (1) WHEN HE FELL FROM A LADDER 2ND DEPT.

In the context of a legal malpractice action based on the failure to timely commence a Labor Law 240 (1) action, the Second Department determined there was a question of fact whether plaintiff was engaged in routine maintenance (not covered by the Labor Law) or repair (covered by the Labor Law) at the time he fell from a ladder:

Here, the defendants’ own submissions failed to eliminate triable issues of fact as to whether the plaintiff was engaged in “repair[s]” at the time of his accident or whether he was engaged in routine maintenance. On the one hand, the defendants submitted evidence establishing that the plaintiff was changing a ballast in a light fixture at the time of his accident, a job which constitutes routine maintenance since the replacement of this component occurs in the course of normal wear and tear … . However, the defendants also submitted the plaintiff’s deposition testimony in support of their motion. The plaintiff testified at his deposition that he was in the midst of disconnecting, splicing, cleaning, and assessing the internal electrical wires in order to fix a light fixture when he fell from the ladder. Thus, the plaintiff’s deposition testimony demonstrated the existence of a triable issue of fact as to whether the plaintiff was “repairing” the light fixture at the time of his accident … . Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 2017 NY Slip Op 05709, 2nd Dept 7-19-17

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE OR REPAIR COVERED BY LABOR LAW 240 (1) WHEN HE FELL FROM A LADDER 2ND DEPT)

ALTHOUGH THE BOOM TRUCK WAS 700 FEET FROM WHERE IT WAS LOADED WHEN THE BOOM STRUCK AN OVERHEAD SIGN, THE TRUCK WAS AT THE WORK SITE WITHIN THE MEANING OF THE LABOR LAW, ALTHOUGH THE INDUSTRIAL CODE PROVISION ADDRESSED THE POSITION OF THE BOOM BUT NOT THE NATURE OF THE ACCIDENT, THE PROVISION WAS BROADLY WORDED AND RAISED A QUESTION OF FACT ON THE LABOR LAW 241 (6) CAUSE OF ACTION 1ST DEPT.

The First Department, reversing (modifying) Supreme Court, over an extensive dissent, determined defendants should not have been awarded summary judgment on plaintiff’s Labor Law 241 (6) cause of action. Plaintiffs were injured when the extended boom on a boom truck struck an overhead sign on a bridge as the truck was being driven away from where it was loaded. Supreme Court had found the accident did not occur at the work site so the Labor Law was not implicated. The First Department held that the truck, which was 700 feet from where it was loaded when the boom struck the sign, was at the work site within the meaning of the Labor Law. The court further found that an Industrial Code provision which related to the position of the boom, but not to the precise facts of the accident, raised a question of fact sufficient to allow the Labor Law 241 (6) cause of action to proceed:

At this stage, … an issue of fact exists as to whether defendants violated section 23-8.2(d)(3) of the Industrial Code, pertaining to “[m]obile crane travel,” which provides that “[a] mobile crane, with or without load, shall not travel with the boom so high that it may bounce back over the cab”… . … Defendants complain that there was no evidence that the boom bounced back over the cab. However, the regulation is violated when a mobile crane has “the boom so high that it may bounce back over the cab” … . Even assuming defendants are correct, the boom was high enough to strike a gantry sign. We reject the dissent’s argument that the regulation was not implicated because plaintiffs were not injured by the boom bouncing over the cab, but rather, when the boom hit the road sign. ​James v Alpha Painting & Constr. Co., Inc., 2017 NY Slip Op 05692, 1st Dept 7-18-17

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH THE BOOM TRUCK WAS 700 FEET FROM WHERE IT WAS LOADED WHEN THE BOOM STRUCK AN OVERHEAD SIGN, THE TRUCK WAS AT THE WORK SITE WITHIN THE MEANING OF THE LABOR LAW, ALTHOUGH THE INDUSTRIAL CODE PROVISION ADDRESSED THE POSITION OF THE BOOM BUT NOT THE NATURE OF THE ACCIDENT, THE PROVISION WAS BROADLY WORDED AND RAISED A QUESTION OF FACT ON THE LABOR LAW 241 (6) CAUSE OF ACTION 1ST DEPT)

PRIME CONTRACTOR WAS A STATUTORY AGENT OF THE OWNER, LABOR LAW 200 AND 241(6) CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF TRIPPED OVER EXTENSION CORDS ON THE FLOOR 3RD DEPT.

The Third Department determined defendant prime contractor was a statutory agent of the owner such that liability under the Labor Law could be imposed. Plaintiff (Mitchell) tripped over extension cords on the floor. Labor Law 200 and 241(6) causes of action survived summary judgment:

Labor Law § 200 “codifies the common-law duty of an owner or employer to provide employees with a safe place to work” … . Liability, however, will only be imposed upon a showing that the party charged with the duty to provide a safe work place had “the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition”… . In a case, such as this, where the injury is caused by a dangerous condition at the work site, the prerequisite of control necessary to impose liability requires “control of the place of injury and actual or constructive notice of the unsafe condition”… . …

A statutory agency relationship is created where the owner or contractor delegates the work giving rise to the Labor Law § 241 (6) duties to a third party, at which point “that third party then obtains the concomitant authority to supervise and control that work”… . While prime contractors are immune from liability pursuant to Labor Law § 241 (6) where they lack contractual privity with the injured plaintiff’s employer and have “no authority to supervise or control the work being performed at the time of the injury” … ,the record establishes that defendant was in contractual privity with TBS [plaintiff’s employer] and that the owner had delegated all mechanical work to defendant by hiring it as the sole mechanical contractor for the project, thereby demonstrating the owner’s intent to delegate supervisory control over TBS’s work to defendant as its statutory agent … . Mitchell v T. McElligott, Inc., 2017 NY Slip Op 05653, 3rd Dept 7-13-17

LABOR LAW-CONSTRUCTION LAW (PRIME CONTRACTOR WAS A STATUTORY AGENT OF THE OWNER, LABOR LAW 200 AND 241(6) CAUSES OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT, PLAINTIFF TRIPPED OVER EXTENSION CORDS ON THE FLOOR 3RD DEPT)

ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT.

The Fourth Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment on the Labor Law 240(1) cause of action. Although plaintiff’s decedent fell from either a ladder or a scaffold (no witnesses) there was no evidence the ladder tipped or the scaffold was defective:

“A plaintiff is entitled to summary judgment under Labor Law § 240 (1) by establishing that he or she was subject to an elevation-related risk, and [that] the failure to provide any safety devices to protect the worker from such a risk [was] a proximate cause of his or her injuries’ ” … . Here, it is undisputed that the safety ladder used by decedent did not tip, and that the scaffolding did not collapse, tip, or shift. Decedent, himself the only witness to the accident, was unable to provide any testimony or statement concerning how the accident happened. Thus, we note that this case is unlike those cases in which the plaintiff’s version of his or her fall is uncontroverted because the plaintiff is the only witness thereto … .

It is now axiomatic that “[t]he simple fact that plaintiff fell from a ladder [or a scaffold] does not automatically establish liability on the part of [defendants]”… . Thus, we conclude that the court erred in determining that plaintiff met her initial burden on her motion by simply establishing that decedent fell from a height. We further conclude that plaintiff’s submissions raise triable issues of fact as to, inter alia, how the accident happened, from where decedent fell—the ladder or the scaffold, and whether a violation of Labor Law § 240 (1) occurred. Hastedt v Bovis Lend Lease Holdings, Inc., 2017 NY Slip Op 05522, 4th Dept 7-7-17

 

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/LADDERS (LABOR LAW-CONSTRUCTION LAW, (ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)/SCAFFOLDS (LABOR LAW-CONSTRUCTION LAW, (ALTHOUGH PLAINTIFF’S DECEDENT FELL FROM EITHER A LADDER OR A SCAFFOLD, THERE WAS NO EVIDENCE THE LADDER OR SCAFFOLD TIPPED OR SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED 4TH DEPT)

DEFENDANTS DID NOT CONTROL THE MANNER OF PLAINTIFF’S WORK AND PLAINTIFF WAS ENGAGED IN ROUTINE MAINTENANCE, NOT CONSTRUCTION. LABOR LAW 200 AND 240(1) CAUSES OF ACTION PROPERLY DISMISSED.

The Second Department determined the Labor Law 200 and 240(1) causes of action were properly dismissed. Plaintiff fell from a ladder attached to the side of a tanker truck and alleged the fall was caused by the design of the ladder and the absence of safety device. Because the Labor Law 200 cause of action was based upon the manner in which the work was performed, the fact that defendants did not control the manner of plaintiff’s work entitled defendants to summary judgment. The Labor Law 240(1) cause of action was properly dismissed because plaintiff was engaged in routine maintenance, not construction, demolition, etc.:

“When the methods or materials of the work are at issue, recovery against the owner or general contractor cannot be had . . . unless it is shown that the party to be charged had the authority to supervise or control the performance of the work'” … . A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed … . …

The … defendants … established, prima facie, that they were entitled to judgment as a matter of law dismissing the Labor Law § 240(1) causes of action asserted against each of them by showing that the plaintiff’s work did not constitute erection, demolition, repairing, altering, painting, cleaning, or pointing of a building or structure within the meaning of Labor Law § 240(1) … . Kearney v Dynegy, Inc., 2017 NY Slip Op 05209, 2nd Dept 6-28-17

 

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