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PLANKS AND CRIBBING COVERING AN OPENING WERE SAFETY DEVICES WITHIN THE MEANING OF LABOR LAW 240 (1), FAILURE TO SECURE THE CRIBBING WAS A PROXIMATE CAUSE OF THE ACCIDENT (FIRST DEPT).

The First Department determined defendants’ motion for summary judgment in this Labor Law 240 (1) action was properly denied. Plaintiff was attempting to remove planks covering an opening over an elevator shaft. His foot slipped on oil and he was injured trying to maintain control of a blank. Cribbing under the planks should have been secured but was not. The court held that the planks and cribbing were safety devices within the meaning of the Labor Law. And even if slipping on the oil was a proximate cause of the injury, there can be more than one proximate cause:

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… [T]he cribbing and planking together constituted a safety device designed to protect the workers on the project from falling into the opening in the construction floor … . Further, it is undisputed that the cribbing was not secured at the time of plaintiff’s accident, which allowed the plank plaintiff was holding to fall into the opening, dragging plaintiff toward the opening, causing his injuries.

To the extent defendants assert that they cannot be held liable under Labor Law § 240(1), on the ground that plaintiff’s accident was not caused by the inadequacy of a safety device but rather by him slipping on an oily substance, this does not support granting summary judgment to the defendants. Although plaintiff testified that he slipped due to the oily substance on the floor, the safety device comprised of the cribbing and planking, which was installed to prevent workers from falling into the opening in the floor, could be found by a trier of fact to be a proximate cause of plaintiff’s injuries. Even if the oily substance on the floor was a proximate cause of plaintiff’s accident, “[t]here may be more than one proximate cause of a workplace accident” … . Wiscovitch v Lend Lease (U.S.) Constr. LMB Inc., 2018 NY Slip Op 00350, First Dept 1-18-18

LABOR LAW-CONSTRUCTION LAW (PLANKS AND CRIBBING COVERING AN OPENING WERE SAFETY DEVICES WITHIN THE MEANING OF LABOR LAW 240 (1), FAILURE TO SECURE THE CRIBBING WAS A PROXIMATE CAUSE OF THE ACCIDENT (FIRST DEPT))/SAFETY DEVICES (LABOR LAW-CONSTRUCTION LAW, , PLANKS AND CRIBBING COVERING AN OPENING WERE SAFETY DEVICES WITHIN THE MEANING OF LABOR LAW 240 (1), FAILURE TO SECURE THE CRIBBING WAS A PROXIMATE CAUSE OF THE ACCIDENT (FIRST DEPT))

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PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, DEFENDANTS GENERAL CONTRACTOR AND LESSEE SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT, DEFENDANT OUT OF POSSESSION LANDLORD SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT, CRITERIA EXPLAINED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff should have been granted summary judgment on his Labor Law 240 (1) cause of action, the general contractor’s (PWI’s) and lessee’s (St. John’s) motions for summary judgment should have been denied, and the out-of-possession landlord’s (Rolex’s) motion for summary judgment should have been granted. Plaintiff was injured moving a 600 pound I-beam down some stairs and alleged there was debris on the steps, there was no handrail, and the lighting was dim:

 

The Labor Law § 200 and common-law negligence claims were incorrectly dismissed as against PWI and St. John. To the extent plaintiff’s claim is based on allegations that his fall was due to the defective condition of the premises (including the presence of debris on the staircase, inadequate lighting, and the lack of a handrail), defendants can be held liable for plaintiff’s injuries only if they created or had notice of the dangerous conditions on the premises … . … [P]laintiff raised an issue of fact through his testimony that there was debris in the form of chopped concrete, pieces of wire, and trim studs on the steps, that there was no handrail, and that the lighting was dim. …

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The record demonstrates that Rolex, an out-of-possession landlord with a right of re-entry to maintain and repair, was not involved with the project and was not on site and thus that it had no actual notice of the dangerous conditions … . The record demonstrates further that Rolex cannot be held liable under a theory of constructive notice because the dangerous conditions did not constitute significant structural or design defects that violated specific safety statutes … .

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Finally, defendants were not entitled to summary judgment dismissing the claim under Labor Law § 240(1), and plaintiff was entitled to summary judgment as to liability on that claim. The record establishes a failure to provide plaintiff and his coworker with devices offering adequate protection against the gravity-related risks of moving an extremely heavy object down a staircase, leading to the workers’ loss of control over the object’s descent and plaintiff’s injuries … . Dirschneider v Rolex Realty Co. LLC, 2018 NY Slip Op 00253,  First Dept 1-16-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, DEFENDANTS GENERAL CONTRACTOR AND LESSEE SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT, DEFENDANT OUT OF POSSESSION LANDLORD SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT, CRITERIA EXPLAINED (FIRST DEPT))/LANDLORD-TENANT (LABOR LAW-CONSTRUCTION LAW, DEFENDANT OUT OF POSSESSION LANDLORD SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) AND 200 ACTION, CRITERIA EXPLAINED (FIRST DEPT))

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PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, THE FACT THAT THERE WERE NO WITNESSES DID NOT RAISE A QUESTION OF FACT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff's motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was standing on top of a sidewalk shed as he loaded sheetrock into a building when the shed broke. The fact that there were no witnesses did not raise a question of fact:

Plaintiff Pedro Serrano was injured when, during the course of moving sheetrock into a building, he stood on top of a sidewalk shed that broke beneath him, causing him to fall to the sidewalk below. While the motion court correctly determined that these facts demonstrated plaintiffs' prima facie entitlement to summary judgment … , it erred in finding that EAS [defendant] raised a triable issue of fact. That no witness other than plaintiff testified as to the occurrence of the accident does not bar judgment in his favor, “where nothing in the record contradicts his version of the occurrence or raises an issue as to his credibility” … , and defendant EAS's expert report was purely speculative in that it was not based on an examination of the sidewalk shed at the time of the accident … . Serrano v TED Gen. Contr., 2018 NY Slip Op 00113, First Dept 1-9-18

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, THE FACT THAT THERE WERE NO WITNESSES DID NOT RAISE A QUESTION OF FACT (FIRST DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTIVE LAW, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, THE FACT THAT THERE WERE NO WITNESSES DID NOT RAISE A QUESTION OF FACT (FIRST DEPT))

EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment in this falling objects case. Plaintiff was making an opening in a concrete wall when cinderblocks above the opening fell on him. The court held that the cinderblocks should have been secured and no safety device had been employed. Expert evidence that no safety device was needed did not create a question of fact:

… [T]he testimony and expert opinion that a safety device was neither necessary nor customary “is insufficient to establish the absence of a Labor Law § 240 (1) violation” … . O'Brien v Port Auth. of N.Y. & N.J. (29 NY3d 27 [2017]) is not to the contrary. Unlike in O'Brien, the experts here do not differ as to whether a safety device that was provided was adequate, but rather differ as to whether a safety device was required at all … . In light of the uncontroverted fact that no safety devices were provided, it would be error to submit to the jury for their resolution the conflicting expert opinion as to what safety devices, if any, should have been employed … . Gonzalez v Paramount Group, Inc., 2018 NY Slip Op 00029, First Dept 1-2-18

LABOR LAW-CONSTRUCTION LAW (EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, EXPERT EVIDENCE THAT A SAFETY DEVICE WAS NOT NECESSARY IN THIS FALLING OBJECTS CASE DID NOT CREATE A QUESTION OF FACT, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION (FIRST DEPT))

PRESENCE OF LOOSE GRANULES WHICH CAUSED PLAINTIFF TO SLIP TO HIS KNEES VIOLATED INDUSTRIAL CODE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 241 (6) cause of action because the presence of loose material on a roof which cause plaintiff to slip to his knees violated an industrial code provision:

 

The record demonstrates that the loose granules on the roof surface that caused plaintiff to slip were not integral to the structure or the work … , but were an accumulation of debris from which § 23-1.7(e)(2) requires work areas to be kept free … .. Thus, plaintiff is entitled to summary judgment as to liability on the Labor Law § 241(6) cause of action insofar as it is predicated upon § 23-1.7(e)(2). Lester v JD Carlisle Dev. Corp., 2017 NY Slip Op 09259, First Dept 12-28-17

 

LABOR LAW-CONSTRUCTION LAW (PRESENCE OF LOOSE GRANULES WHICH CAUSED PLAINTIFF TO SLIP TO HIS KNEES VIOLATED INDUSTRIAL CODE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))/INDUSTRIAL CODE (LABOR LAW-CONSTRUCTION LAW, PRESENCE OF LOOSE GRANULES WHICH CAUSED PLAINTIFF TO SLIP TO HIS KNEES VIOLATED INDUSTRIAL CODE, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED (FIRST DEPT))

THREE-FOOT HEIGHT DIFFERENTIAL IN ROOF LEVELS WAS NOT THE TYPE OF ELEVATION HAZARD CONTEMPLATED BY LABOR LAW 240 (1) (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the three-foot height differential between roof levels did not present the type of elevation hazard contemplated by Labor Law 249 (1). Plaintiff climbed to the higher level to retrieve a ladder and fell off when his foot slipped on the edge of the higher level:

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The plaintiff and his coworker climbed to this higher level of the roof without using any equipment. When the plaintiff attempted to descend to the lower level of the roof, his right foot slipped on the lip of the upper level, and he fell onto the lower level. …

The defendants established … that Labor Law § 240(1) does not apply because the three-foot- height differential between the two levels of the roof did not present the sort of elevation-related risk protected by that statute … . Pita v Roosevelt Union Free Sch. Dist., 2017 NY Slip Op 08869, Second Dept 12-20-17

 

LABOR LAW-CONSTRUCTION LAW (THREE-FOOT HEIGHT DIFFERENTIAL IN ROOF LEVELS WAS NOT THE TYPE OF ELEVATION HAZARD CONTEMPLATED BY LABOR LAW 240 (1) (SECOND DEPT))/ELEVATION RELATED RISK (LABOR LAW 240 (1), THREE-FOOT HEIGHT DIFFERENTIAL IN ROOF LEVELS WAS NOT THE TYPE OF ELEVATION HAZARD CONTEMPLATED BY LABOR LAW 240 (1) (SECOND DEPT))

ALTHOUGH PLAINTIFF FELL OFF A LOADING DOCK WHILE WAITING TO SIGN IN TO WORK IN A BUILDING, HIS INJURY OCCURRED AT THE CONSTRUCTION SITE AND WHILE HE WAS ENGAGED IN WORK INVOLVING A GRAVITY-RELATED RISK WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT).

The First Department, over a two-justice dissent, determined the motion to dismiss plaintiff’s Labor Law 240 (1) cause of action was properly denied. Plaintiff fell off a loading platform while waiting to sign in to work painting upper floors of a building. The dissent argued that plaintiff was not at the construction site, within the meaning of the statute, at the time of the injury:

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Rather than isolating the moment of a plaintiff’s injury, the general context of the work is what should be taken into account … . Clearly, at the time of the accident, plaintiff was entering the building and reporting to the construction site through the only means of access the owner made available to him and all other construction workers. Arguments that plaintiff’s injury did not occur at a “construction site,” under the circumstance of this case, places an unintended limitation on Labor Law § 240(1).

While at the precise moment of plaintiff’s injury he was awaiting clearance to enter the building and he slipped or fell off a permanent structure, there is no merit to [defendant’s] further contention that plaintiff was not actually engaged in work involving a gravity-related risk … . We have held that injuries sustained while a worker was on site, although entering or exiting the site, or on a break, come within the protections of Labor Law § 240(1) … . It is, therefore, of no moment the elevated loading dock is a permanent fixture that existed before the project began … . Hoyos v NY-1095 Ave. of the Ams., LLC, 2017 NY Slip Op 08717, First Dept 12-14-17

 

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH PLAINTIFF FELL OFF A LOADING DOCK WHILE WAITING TO SIGN IN TO WORK IN A BUILDING, HIS INJURY OCCURRED AT THE CONSTRUCTION SITE AND WHILE HE WAS ENGAGED IN WORK INVOLVING A GRAVITY-RELATED RISK WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT))/CONSTRUCTION SITE (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF FELL OFF A LOADING DOCK WHILE WAITING TO SIGN IN TO WORK IN A BUILDING, HIS INJURY OCCURRED AT THE CONSTRUCTION SITE AND WHILE HE WAS ENGAGED IN WORK INVOLVING A GRAVITY-RELATED RISK WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT))GRAVITY-RELATED RISK (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF FELL OFF A LOADING DOCK WHILE WAITING TO SIGN IN TO WORK IN A BUILDING, HIS INJURY OCCURRED AT THE CONSTRUCTION SITE AND WHILE HE WAS ENGAGED IN WORK INVOLVING A GRAVITY-RELATED RISK WITHIN THE MEANING OF LABOR LAW 240 (1) (FIRST DEPT))

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, HEAVY ROLL OF WIRE FELL BECAUSE OF ABSENCE OF A SAFETY DEVICE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff was injured when a heavy roll of wire fell as it was being moved up a ramp made of planks in a loading area:

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Plaintiff established entitlement to judgment as a matter of law on the issue of liability where he was injured during the course of his employment when a reel of electrical wire weighing 500 to 1,000 pounds fell and struck his foot. Workers were rolling the reel up two wooden planks for loading onto a van when it fell, and although there are questions as to whether plaintiff was actually involved in moving the reel, plaintiff demonstrated that he sustained injuries from the falling reel due to absence of an adequate safety device… .

Defendants and third-party defendants (collectively defendants) fail to raise a triable issue of fact. They contend that issues exist as to whether a forklift was available onsite, and whether plaintiff was a recalcitrant worker for failing to use it despite being aware of it… . However, even if a forklift was available and plaintiff was aware of it, defendants have not offered evidence showing that he was actually instructed to use it… . Rather, it is undisputed that plaintiff’s foreman had instructed the workers to move the reel as they did, and to the extent defendants rely on the testimony of plaintiff’s employer that plaintiff was not to blindly follow the foreman’s instructions, such overlooks the realities of construction work … .

Nor is there a triable issue as to whether plaintiff was the sole proximate cause of the accident. Even assuming that plaintiff did assist in moving the reel and in the course of doing so, removed his hand from the reel, such was not the sole proximate cause of the accident, as he was not provided with an adequate safety device to hoist the reel in the first instance … .

The contention that Labor Law § 240(1) is inapplicable because the loading of the reel did not fall within the scope of construction work, is unavailing. Although it was not actual construction work, and occurred in the loading area of the construction site, it was still part of the construction project … . Gutierrez v 451 Lexington Realty LLC, 2017 NY Slip Op 08475, First Dept 12-5-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION, HEAVY ROLL OF WIRE FELL BECAUSE OF ABSENCE OF A SAFETY DEVICE (FIRST DEPT))

QUESTION OF FACT WHETHER BRICKS WHICH STRUCK PLAINTIFF WERE DELIBERATELY DROPPED, WHICH WOULD NOT BE COVERED BY LABOR LAW 240 (1) (FIRST DEPT).

The First Department determined a question of fact precluded summary judgment on the Labor Law 240 (1) cause of action. Plaintiff was struck by falling bricks outside a building. If the bricks fell accidentally, Labor Law 240 (1) would cover the injury, if the bricks were deliberately dropped, Labor Law 240 (1) would not cover the injury. In addition, the Labor Law 241 (6) cause of action was deemed properly dismissed because the incident occurred outside the building:

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Plaintiff was allegedly struck by falling bricks while working near one of four connected buildings on a construction site. The motion court correctly denied both plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim and defendants’ motion for summary judgment dismissing that claim, as there are issues of fact about whether the bricks fell accidently or were deliberately dropped by demolition workers. If the latter, then the bricks did not constitute falling objects pursuant to Labor Law § 240(1) … . …

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The motion court correctly dismissed the Labor Law § 241(6) claim predicated on an alleged violation of Industrial Code (12 NYCRR) § 23-3.3(g), based on plaintiff’s testimony that his accident occurred outside rather than “within [a] building” (12 NYCRR 23-3.3[g]). Torres v Love Lane Mews, LLC, 2017 NY Slip Op 08467, First Dept 12-5-17

 

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER BRICKS WHICH STRUCK PLAINTIFF WERE DELIBERATELY DROPPED, WHICH WOULD NOT BE COVERED BY LABOR LAW 240 (1) (FIRST DEPT))/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER BRICKS WHICH STRUCK PLAINTIFF WERE DELIBERATELY DROPPED, WHICH WOULD NOT BE COVERED BY LABOR LAW 240 (1) (FIRST DEPT))

AMONG SEVERAL LABOR LAW, NEGLIGENCE AND INSURANCE ISSUES ADDRESSED IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION, THE 2ND DEPT DETERMINED SUPREME COURT APPLIED THE WRONG STANDARD IN ITS LABOR LAW 200 ANALYSIS (FIRST DEPT).

The First Department affirmed and reversed several rulings on defendants’ motions for summary judgment in this Labor Law 240 (1), 241 (6), 200, and common law negligence action. Plaintiff was injured when he slipped on a loose piece of sprinkler pipe on property owned by defendant One City. The 2nd Department determined the correct standard for analyzing the Labor 200 cause of action was under the dangerous condition prong, rather than the manner of work prong, of Labor Law 200 and dismissed that cause of action. There was no proof One City created or knew about the dangerous condition. The Labor Law 241 (6) cause of action properly survived summary judgment because there was a question of fact whether the fall occurred in a passageway that should be kept clear and there was a question fact whether plaintiff was cleaning up the area at the time (which would preclude suit). The 2nd Department further found that there was a question of fact whether another defendant had purchased insurance as required by a contract with One City. The court also addressed indemnification issues. With regard to the Labor Law 200 and common law negligence causes of action, the court wrote:

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Section 200 of the Labor Law is a codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work … . “Claims for personal injury under the statute and the common law fall into two broad categories: those arising from an alleged defect or dangerous condition existing on the premises and those arising from the manner in which the work was performed” … .”Where the injury was caused by the manner and means of the work, including the equipment used, the owner or general contractor is liable if it actually exercised supervisory control over the injury-producing work” … . “Where an existing defect or dangerous condition caused the injury, liability attaches if the owner or general contractor created the condition or had actual or constructive notice of it” … .

Here, the court finds that the appropriate standard to apply in this case is the dangerous condition standard and not the manner and means standard. The cause of the accident, the piece of loose pipe, was not a condition created by the manner in which the work was performed by plaintiff or his employer but was rather a condition that already existed prior to plaintiff’s arrival on the fifth floor that day.  Prevost v One City Block LLC, 2017 NY Slip Op 08303, First Dept 11-28-17

 

LABOR LAW-CONSTRUCTION LAW (AMONG SEVERAL LABOR LAW, NEGLIGENCE AND INSURANCE ISSUES ADDRESSED IN THIS LABOR LAW 240 (1), 241 (6) AND 200 ACTION, THE 2ND DEPARTMENT DETERMINED SUPREME COURT APPLIED THE WRONG STANDARD IN ITS LABOR LAW 200 ANALYSIS (FIRST DEPT))

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