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ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER.

The Fourth Department, reversing (modifying) Supreme Court, determined plaintiff town’s motion for summary judgment on the Labor Law 240 (1) and 241 (6) causes of action should have been granted. Plaintiff was hired by the town to repair a vacant house. He fell from a ladder. The Fourth Department determined the town was not an “owner” or “general contractor” within the meaning of the Labor Law statutes:

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We agree with the Town that it established as a matter of law that it is not liable for plaintiff’s injuries under Labor Law §§ 240 (1) and 241 (6) inasmuch as it was not an owner of the property or a general contractor on the project. For the purposes of the Labor Law, the term “owner” encompasses the titleholder of the property where the accident occurred, as well as “a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit”… . Here, the Town did not hold title to the property, nor did it have any interest in the property… . Furthermore, even assuming, arguendo, that the Town was an owner of the property, we conclude that the Town would be entitled to the homeowner exemption under the Labor Law … .

We further conclude that the Town established as a matter of law that it was not a general contractor on the project … . The Town submitted evidence establishing that no Town employees were on the job site, plaintiff’s employer, and not the Town, directed plaintiff to the job site, and the Town did not have the authority to direct plaintiff with respect to the method and manner in which he would perform the work. Thus, the Town established that it was not a general contractor inasmuch as it was not “responsible for coordinating and supervising the project” … , and plaintiff failed to raise a question of fact.  Berner v Town of Cheektowaga, 2017 NY Slip Op 04610, 4th Dept 6-9-17

 

MUNICIPAL LAW (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER)/LABOR LAW-CONSTRUCTION LAW (MUNICIPAL LAW,  ALTHOUGH THE TOWN HIRED PLAINTIFF TO REPAIR A VACANT HOUSE, THE TOWN WAS NOT AN OWNER OR GENERAL CONTRACTOR WITHIN THE MEANING OF THE LABOR LAW, TOWN’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED FOR THE LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION STEMMING FROM PLAINTIFF’S FALL FROM A LADDER)

PLAINTIFF STRUCK BY A PLANK WHICH FELL OFF A SCAFFOLD, SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED.

The First Department determined summary judgment on plaintiff’s Labor Law 240 (1) was properly granted. Plaintiff was struck by a plank which fell from a scaffold that was being dismantled:

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Whether or not the scaffold provided workers at the site with adequate protection for working at an elevation, the unsecured plank falling from the scaffold and striking plaintiff as the scaffold was being moved constituted a distinct elevation-related hazard requiring the securing of the plank for the purpose of moving the scaffold … . Gonzalez v City of New York, 2017 NY Slip Op 04555, 1st Dept 6-8-17

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LABOR LAW-CONSTRUCTION LAW (PLAINTIFF STRUCK BY A PLANK WHICH FELL OFF A SCAFFOLD, SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) PROPERLY GRANTED)/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF STRUCK BY A PLANK WHICH FELL OFF A SCAFFOLD, SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) PROPERLY GRANTED)

FALL INTO AN UNGUARDED TRENCH WARRANTED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION.

The Fist Department determined plaintiff was properly granted summary judgment on his Labor Law 240 (1) and 241 (6). Plaintiff was directing traffic when he was struck by a truck fell into an unguarded trench:

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Plaintiff Martin Gjeka made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) claim, by submitting his and other witnesses’ testimony that he was directing traffic around an unguarded trench in the road measuring approximately five to eight feet deep, which was being excavated to allow new sewer lines to be installed for a building … , when a truck … traveling about 25 or 30 miles per hour, struck plaintiff, causing him to fall into the trench. Such testimony, as well as plaintiff’s two expert affidavits, established that his work exposed him to an extraordinary gravity-related risk, and that the absence of any safety device such as a barrier or safety railing around the trench was a violation of Labor Law § 240(1) … .  …

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Labor Law § 241(6) imposes on owners a nondelegable duty to comply with specific safety regulations … . Industrial Code § 23-1.7(b)(1) requires that “hazardous opening[s] into which a person may step or fall” must “be guarded by a substantial cover . . . or by a safety railing.” Industrial Code § 23-4.2(h) requires that “[a]ny open excavation adjacent to a . . . street, . . . or other area lawfully frequented by any person shall be effectively guarded.” Both are plainly applicable to this case. Gjeka v Iron Horse Transp., Inc., 2017 NY Slip Op 04536, 1st Dept 6-8-17

 

LABOR LAW-CONSTRUCTION LAW (FALL INTO AN UNGUARDED TRENCH WARRANTED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION)/TRENCHES (LABOR LAW-CONSTRUCTION LAW, FALL INTO AN UNGUARDED TRENCH WARRANTED SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION)

AFTER THE JURY HAD FOUND DEFENDANT DID NOT VIOLATE LABOR LAW 240 (1), THE APPELLATE COURT DETERMINED PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AT THE OUTSET, PLAINTIFF FELL FROM A LADDER WHEN THE LADDER SHIFTED.

After a full trial the jury found defendant did not violate Labor Law 240 (1) and awarded damages on plaintiff’s Labor Law 241 (6) cause of action. Plaintiff had fallen from a ladder when it shifted. The Second Department determined plaintiff’s motion for summary judgment on the Labor Law 240 (1) cause of action should have been granted at the outset. Because the jury apportioned fault, the damages had to be revamped because comparative fault does not apply to a Labor Law 240 (1) cause of action. The court noted that plaintiff’s undocumented immigrant status and the fact he did not pay taxes and used a coworker’s name, issues raised by the defendant (apparently in opposition to plaintiff’s summary judgment motion), had no relevance to credibility as to any material fact:

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Before the matter proceeded to a trial on the issue of liability, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the issue of liability on his Labor Law § 240(1) cause of action. The plaintiff established his prima facie entitlement to judgment as a matter of law through his deposition testimony, which indicated that he was working on an unsecured ladder that moved while he was standing on it … . In opposition, Drake, which submitted only an attorney’s affirmation, failed to raise a triable issue of fact … . Contrary to Drake’s contention, the fact that the plaintiff was an undocumented immigrant who failed to pay taxes and had used a coworker’s name to obtain health insurance immediately following the accident does not present an issue relating to the plaintiff’s credibility as to any material fact … .

Further, as “contributory negligence will not exonerate a defendant who has violated [Labor Law § 240(1)] and proximately caused a plaintiff’s injury” … , the jury’s finding of comparative fault, and the corresponding reduction in the damages awarded to the plaintiff, must be vacated. Cano v Mid-Valley Oil Co., Inc., 2017 NY Slip Op 04419, 2nd Dept 6-7-17

 

LABOR LAW-CONSTRUCTION LAW (AFTER THE JURY HAD FOUND DEFENDANT DID NOT VIOLATE LABOR LAW 240 (1), THE APPELLATE COURT DETERMINED PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AT THE OUTSET, PLAINTIFF FELL FROM A LADDER WHEN THE LADDER SHIFTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, AFTER THE JURY HAD FOUND DEFENDANT DID NOT VIOLATE LABOR LAW 240 (1), THE APPELLATE COURT DETERMINED PLAINTIFF SHOULD HAVE BEEN GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION AT THE OUTSET, PLAINTIFF FELL FROM A LADDER WHEN THE LADDER SHIFTED)

PLAINTIFF SLIPPED ON ROSIN PAPER WHICH WAS PLACED ON THE STEPS AS AN INTEGRAL PART OF THE WORK, LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED.

The Second Department determined plaintiff’s Labor Law causes of action were properly dismissed. Plaintiff slipped and fell on rosin paper on a step. Use of rosin paper was an integral part of the work. The court determined the Labor Law 240 (1) cause of action was properly dismissed because the accident was not caused by the operation of gravity within the meaning of the statute and the Labor Law 241 (6) cause of action was properly dismissed because the rosin paper was not a foreign substance:

In support of that branch of their motion which was for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1), the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff’s injuries were not the direct consequence of the application of the force of gravity to an object or person … and, thus, fell outside the ambit of Labor Law § 240(1). …

The defendants also established their prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 241(6) cause of action, premised upon a violation of 12 NYCRR 23-1.7(d), by establishing that the protective rosin paper upon which the plaintiff slipped was an integral part of the tile work … .As such, the rosin paper does not constitute a “foreign substance” within the meaning of 12 NYCRR 23-1.7(d) … . Lopez v Edge 11211, LLC, 2017 NY Slip Op 04262, 2nd Dept 5-31-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF SLIPPED ON ROSIN PAPER WHICH WAS PLACED ON THE STEPS AS AN INTEGRAL PART OF THE WORK, LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION PROPERLY DISMISSED)

PLAINTIFF FELL FROM AN UNSECURED A-FRAME LADDER THAT SHIFTED FOR NO APPARENT REASON, SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED.

The Second Department determined plaintiff’s motion for summary judgment was properly granted in this Labor Law 240 (1) action based upon the allegation an unsecured A-frame ladder shifted for no apparent reason cause plaintiff to fall from it:

Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites… . “To prevail on a Labor Law § 240(1) cause of action, a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries” … .

Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). According to [plaintiff’s] deposition testimony, he was standing on an unsecured A-frame ladder when the ladder shifted for no apparent reason, causing him to fall … . In opposition, [defendant] failed to raise a triable issue of fact as to whether Alvarez’s own actions were the sole proximate cause of the accident … . Alvarez v Vingsan L.P., 2017 NY Slip Op 04241, 2nd Dept 5-31-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF FELL FROM AN UNSECURED A-FRAME LADDER THAT SHIFTED FOR NO APPARENT REASON, SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF FELL FROM AN UNSECURED A-FRAME LADDER THAT SHIFTED FOR NO APPARENT REASON, SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY GRANTED)

TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED.

The First Department determined plaintiff was properly awarded summary judgment on his Labor Law 240 (1) cause of action. The ladder plaintiff was using to take measurements in preparation for work broke. Taking measurements is an activity covered by the Labor Law:

The motion court correctly determined that plaintiffs were entitled to partial summary judgment against defendant owners on the issue of section 240(1) liability because the ladder that plaintiff … was using to take measurements in preparation for work to be performed on the roof of defendant owners’ building broke, causing him to fall to the ground … . Contrary to defendant owners’ contention, the work that plaintiff was engaged in was a protected activity within the meaning of Labor Law § 240(1) … . Ortiz-Cruz v Evers, 2017 NY Slip Op 04228, 1st Dept 5-30-17

LABOR LAW-CONSTRUCTION LAW (TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED)/MEASURING (LABOR LAW-CONSTRUCTION LAW, (TAKING MEASUREMENTS IN PREPARATION FOR ROOF WORK IS AN ACTIVITY COVERED UNDER LABOR LAW 240 (1), PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT BASED UPON HIS FALL FROM A BROKEN LADDER WAS PROPERLY GRANTED)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(6) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 241(6) cause of action. A portion of plaintiff’s harness touched an exposed electric wire. Defendants, who were vicariously liable, did not raise a question of fact about plaintiff’s comparative negligence:

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It is undisputed that violations of Industrial Code (12 NYCRR) § 23-1.13(b)(3) and (4) proximately caused the injuries sustained by plaintiff when a metal part of his safety harness contacted a live electrical wire, known as a BX cable, which was hanging down from a drop ceiling of a building under renovation. Appellants, as owner and general contractor, may be held liable for violation of those provisions, even though they impose obligations on the employer, since they have a nondelegable duty to provide adequate safety protections … . Appellants fail to point to any evidence that would support a finding that plaintiff was comparatively negligent, since he was acting pursuant to his foreman’s instructions and neither knew nor should have known that the cable was electrified, in the absence of any warnings, caution tape, or other such indications that workers should avoid the area … . Appellants’ assertion that they lacked notice of the presence of the exposed, electrified cable is irrelevant, “[s]ince an owner or general contractor’s vicarious liability under section 241(6) is not dependent on its personal capability to prevent or cure a dangerous condition” … . Rubino v 330 Madison Co., LLC, 2017 NY Slip Op 04210, 1st Dept 5-25-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 241(1) CAUSE ACTION, CONTACT WITH A HANGING LIVE ELECTRIC WIRE, DEFENDANTS VICARIOUSLY LIABLE)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION.

The Second Department determined plaintiff was properly awarded summary judgment on his Labor Law 240(1) cause of action irrespective of whether the plywood which struck him fell when it was being hoisted or when workers were about to install it:

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The single decisive question in determining whether Labor Law § 240(1) is applicable is whether the plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential … . “[F]alling object” liability under Labor Law § 240(1) is not limited to cases in which the falling object is in the process of being hoisted or secured …  but also where the plaintiff demonstrates that, at the time the object fell, it “required securing for the purposes of the undertaking” … .

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that the defendant failed to provide an adequate safety device to protect him and that this failure was a proximate cause of his injuries. This is so whether the sheet of plywood fell as it was being hoisted because it was not properly secured while it was being pulled up to the roof, as testified to by the plaintiff … , or whether the sheet of plywood fell from the hands of the plaintiff’s coworkers on the roof as it was being installed or about to be installed due to a failure to secure it, a theory advanced by the defendant … . Escobar v Safi, 2017 NY Slip Op 04099, 2nd Dept 5-24-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION)/FALLING OBJECTS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION IRRESPECTIVE OF WHETHER PLYWOOD FELL WHILE HOISTED OR DURING INSTALLATION)

FAILURE TO TIE OFF LANYARD WAS NOT THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, ABSENCE OF A GUARDRAIL ON THE SCAFFOLD REQUIRED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION.

The First Department determined plaintiff’s decedent was entitled to summary judgment on the Labor Law 240 (1) cause of action. The scaffold from which decedent fell did not have a building-side guardrail. Therefore, decedent’s failure to tie off a lanyard was not the sole proximate cause of the fall:

The motion court correctly granted plaintiff summary judgment on her Labor Law § 240(1) claim against Columbia (the building owner) and Bovis (the construction manager). It is uncontested that the scaffolding lacked a guardrail on the side adjacent to the window opening through which decedent fell… . Given this violation of the Labor Law, decedent’s alleged failure to tie his lanyard to the scaffold is not the sole proximate cause of his fall… . Wilk v Columbia Univ., 2017 NY Slip Op 03892, 1st Dept 5-16-17

LABOR LAW-CONSTRUCTION LAW (FAILURE TO TIE OFF LANYARD WAS NOT THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, ABSENCE OF A GUARDRAIL ON THE SCAFFOLD REQUIRED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION)/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, FAILURE TO TIE OFF LANYARD WAS NOT THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S FALL, ABSENCE OF A GUARDRAIL ON THE SCAFFOLD REQUIRED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION)

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