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PLAINTIFF FELL WHILE DOING ROUTINE REPAIR ON AN AIR CONDITIONER, NOT COVERED BY LABOR LAW 240(1).

The Second Department determined defendants’ summary judgment motion dismissing plaintiff’s Labor Law 240(1) cause of action was properly granted. Plaintiff was engaged in routine repair work:

The plaintiff allegedly was injured while performing work on the air conditioning system in a building … . He allegedly fell while climbing over an “I-beam” that was used to support the air conditioning system. He commenced this action to recover damages for personal injuries, alleging, inter alia, a violation of Labor Law § 240(1).

The defendants established, prima facie, that they were entitled to summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) 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) … . The defendants established that the work constituted merely routine maintenance of the air conditioning system … . Tserpelis v Tamares Real Estate Holdings, Inc., 2017 NY Slip Op 01247, 2nd Dept 2-15-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF FELL WHILE DOING ROUTINE REPAIR ON AN AIR CONDITIONER, NOT COVERED BY LABOR LAW 240(1))/MAINTENANCE (LABOR LAW-CONSTRUCTION LAW, (PLAINTIFF FELL WHILE DOING ROUTINE REPAIR ON AN AIR CONDITIONER, NOT COVERED BY LABOR LAW 240(1))

ALLEGATIONS NOT SUFFICIENT TO SUPPORT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION STEMMING FROM A FALL FROM A LADDER.

The Second Department determined Supreme Court erred in granting plaintiff’s summary judgment motion on his Labor Law 240(1) cause of action stemming from a fall from a ladder. Plaintiff did not demonstrate the ladder was defective or unsecured. [The decision explains in detail the criteria for Labor Law 200 liability and several substantive indemnification issues which are not summarized here.]:

“To establish liability pursuant to Labor Law § 240(1), a plaintiff must demonstrate a violation of the statute and that such violation was a proximate cause of his or her injuries'” … . “A fall from a ladder, by itself, is not sufficient to impose liability under Labor Law § 240(1). There must be evidence that the subject ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff’s injuries” … .

Here, the plaintiff’s own submissions demonstrated the existence of triable issues of fact, inter alia, as to how the accident occurred, whether the ladder was inadequately secured, and whether the plaintiff’s actions were the sole proximate cause of the accident … . Shaughnessy v Huntington Hosp. Assn., 2017 NY Slip Op 01245, 2nd Dept 2-15-17

 

LABOR LAW-CONSTRUCTION LAW (LADDERS, ALLEGATIONS NOT SUFFICIENT TO SUPPORT PLAINTIFF’S SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION STEMMING FROM A FALL FROM A LADDER)/LADDERS (LABOR LAW-CONSTRUCTION LAW, ALLEGATIONS NOT SUFFICIENT TO SUPPORT PLAINTIFF’S SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION STEMMING FROM A FALL FROM A LADDER)

SIDEWALK REPAIR TOO FAR REMOVED FROM WORK ON A STRUCTURE, I.E., A GAS MAIN, INJURY NOT WITHIN PURVIEW OF LABOR LAW 240 (1).

The Second Department determined the repair of a sidewalk damaged when a gas main was replaced did not fall within the reach of the Labor Law. Plaintiff was injured when a piece of the sidewalk fell from a backhoe. The court held that the sidewalk repair work was too far removed from the gas main replacement to trigger the Labor Law protections:

Supreme Court properly determined that, at the time of the accident, the injured plaintiff was not engaged in an enumerated activity under Labor Law § 240(1). That statute applies only to “the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” … . Significantly, the statute does not cover an injury occurring after an enumerated activity is complete … . While the plaintiffs urge that the injured plaintiff’s work was part of a larger project involving the replacement of the gas main, the record reflects that the gas main replacement work was performed by a completely different entity and had been completed well before the injured plaintiff commenced any work at the location. Neither the injured plaintiff nor his employer played any role in the replacement of the gas main, and the work performed by the injured plaintiff and his coworkers constituted a separate and distinct phase of the overall project that involved only the demolition and restoration of a sidewalk … . Accordingly, under these circumstances, the plaintiff’s work did not fall within the purview of Labor Law § 240(1) … . Davis v City of New York, 2017 NY Slip Op 01179, 2nd Dept 2-15-17

LABOR LAW-CONSTRUCTION LAW (SIDEWALK REPAIR TOO FAR REMOVED FROM WORK ON A STRUCTURE, I.E., A GAS MAIN, INJURY NOT WITHIN PURVIEW OF LABOR LAW 240 (1))/SIDEWALK (LABOR LAW-CONSTRUCTION LAW, SIDEWALK REPAIR TOO FAR REMOVED FROM WORK ON A STRUCTURE, I.E., A GAS MAIN, INJURY NOT WITHIN PURVIEW OF LABOR LAW 240 (1))/STRUCTURE (LABOR LAW-CONSTRUCTION LAW, SIDEWALK REPAIR TOO FAR REMOVED FROM WORK ON A STRUCTURE, I.E., A GAS MAIN, INJURY NOT WITHIN PURVIEW OF LABOR LAW 240 (1))

HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK.

The Second Department, reversing Supreme Court, determined the homeowner’s exception to Labor Law liability applied to the owner of the home (Kathleen) but not to the agent of the owner who supervised the work (Mervyn). Plaintiff fell from a scaffold:

More generally, “Labor Law §§ 240(1) and 241(6) apply to owners, contractors, and their agents” … . ” 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'” … . “It is not a defendant’s title that is determinative, but the amount of control or supervision exercised” … .

Here, the defendants failed to establish Mervyn’s prima facie entitlement to judgment as a matter of law on the Labor Law §§ 240(1) and 241(6) causes of action by demonstrating that he lacked the authority to supervise or control the plaintiff’s work … . Specifically, the defendants submitted transcripts of the plaintiff’s two depositions, at which he testified that, in addition to visiting the site daily and telling the plaintiff what work to do, Mervyn provided and instructed him to use the allegedly defective scaffold and a safety belt to complete the work that led to his injury. Moreover, the plaintiff testified that his boss told him to follow Mervyn’s instructions, and there is no dispute on this record that Mervyn was listed as an insured on the plaintiff’s employer’s policy. …

To be held liable pursuant to Labor Law § 200 or the common law in a case such as this, where the claim arises out of the methods or means of the work, a defendant must have authority to supervise or control the work … . Here, the defendants established Kathleen’s prima facie entitlement to judgment as a matter of law dismissing the Labor Law § 200 and common-law negligence causes of action against her, and the plaintiffs failed to raise a triable issue of fact in opposition … . For the same reasons as those articulated above, however, the defendants failed to satisfy their prima facie burden with respect to the plaintiff’s Labor Law § 200 and common-law negligence causes of action against Mervyn … . Abdou v Rampaul, 2017 NY Slip Op 01169, 2nd Dept 2-15-17

 

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK)/HOMEOWNER’S EXCEPTION (LABOR LAW-CONSTRUCTION LAW, (HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK)/AGENT (LABOR LAW-CONSTRUCTION LAW, HOMEOWNER’S EXCEPTION APPLIED TO HOMEOWNER BUT NOT TO AGENT OF HOMEOWNER WHO SUPERVISED THE WORK)

FALL FROM TRUCK BED 20 INCHES ABOVE THE GROUND NOT COVERED BY LABOR LAW 240 (1).

The Fourth Department, reversing Supreme Court, determined plaintiff’s fall from a truck bed was not the type of elevation risk covered by Labor Law 240 (1):

Plaintiffs commenced this Labor Law and common-law negligence action seeking damages for injuries sustained by Joseph T. Grabar (plaintiff) when the trailer on which plaintiff was standing tipped, and he fell. Plaintiff was on the bed of the trailer in order to place fuel in a welder that was located on the trailer, and it is undisputed that the trailer bed was approximately 20 inches from the ground. …

We conclude that the trailer “did not present the kind of elevation-related risk that the statute contemplates” … . Grabar v Nichols, Long & Moore Constr. Corp., 2017 NY Slip Op 01068, 4th Dept 2-10-17

 

LABOR LAW-CONSTRUCTION LAW (FALL FROM TRUCK BED 20 INCHES ABOVE THE GROUND NOT COVERED BY LABOR LAW 240 (1))

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PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM; QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY.

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff, who was not wearing a harness, had fallen through a skylight. The anchor points for harnesses had not yet been installed. The employer’s motion for summary judgment dismissing the property owner’s third-party complaint seeking indemnification was, however, properly denied. The Workers’ Compensation Law allows suit only when the injury is grave (not so here) or where there is a written indemnification agreement. Here there was an indemnification agreement entered after the accident. There was a question of fact whether the agreement was intended to be effective retroactively:

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that he was not provided with necessary protection from the gravity-related risk of his work and that the absence of the necessary protection was a proximate cause of his injuries … .

… An employer may be held liable for contribution or indemnification only when its employee has sustained a grave injury as defined by the Workers’ Compensation Law or when there is a “written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution or indemnification of the claimant” … . The Workers’ Compensation Law does not bar indemnification or contribution pursuant to a written agreement that was entered into after the employee’s injury and which the parties agree will have retroactive effect … . “[I]ndemnity contracts are to be strictly construed to avoid reading into them duties which the parties did not intend to be assumed” … . Therefore, an indemnity contract will not be held to have retroactive effect “unless by its express words or necessary implication it clearly appears to be the parties’ intention to include past obligations” … . Cacanoski v 35 Cedar Place Assoc., LLC, 2017 NY Slip Op 00956, 2nd Dept 2-8-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)/WORKERS’ COMPENSATION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CLAIM, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)/CONTRACT LAW (WORKERS’ COMPENSATION LAW, INDEMNIFICATION AGREEMENT, QUESTION OF FACT WHETHER INDEMNIFICATION AGREEMENT WAS INTENDED TO BE EFFECTIVE RETROACTIVELY)

CORRIDOR FORMED BY LUMBER AND MATERIALS PILED ON EITHER SIDE WAS A PASSAGEWAY WITHIN THE MEANING OF THE INDUSTRIAL CODE, DEFENDANT LIABLE UNDER LABOR LAW 241 (6).

The Second Department determined a two to three-foot wide corridor created by lumber and materials piled on either side was a “passageway” within the meaning to the industrial code. Plaintiff was injured when he tripped while carrying materials along the corridor. The Court of Claims properly found defendant liable under Labor Law 241 (6):

The claimant filed a claim pursuant to Labor Law § 241(6) alleging a violation of 12 NYCRR 23-1.7(e)(1), which provides in relevant part that “[a]ll passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.” …

“Labor Law § 241(6) imposes a nondelegable duty upon owners and contractors to provide reasonable and adequate protection and safety to construction workers” … . “In order to recover damages on a cause of action alleging a violation of Labor Law § 241(6), a plaintiff must establish the violation of an Industrial Code provision which sets forth specific safety standards” … . To establish liability under Labor Law § 241(6), a plaintiff or a claimant must demonstrate that his injuries were proximately caused by a violation of an Industrial Code provision that is applicable under the circumstances of the case … . Contributory and comparative negligence are valid defenses to a Labor Law § 241(6) claim … . Aragona v State of New York, 2017 NY Slip Op 00954, 2nd Dept 2-8-17

 

LABOR LAW-CONSTRUCTION LAW (CORRIDOR FORMED BY LUMBER AND MATERIALS PILED ON EITHER SIDE WAS A PASSAGEWAY WITHIN THE MEANING OF THE INDUSTRIAL CODE, DEFENDANT LIABLE UNDER LABOR LAW 241 (6))

BASEMENT OFFICE DID NOT CAUSE DEFENDANT TO LOSE THE HOMEOWNER’S EXEMPTION TO LIABILITY UNDER THE LABOR LAW.

The Second Department determined the defendant property owner was entitled to the homeowners’ exemption from liability under the Labor Law, despite the fact that the residence included an office used for defendant’s business:

Owners of one- or two-family dwellings are exempt from liability under Labor Law § 241(6) unless they directed or controlled the work being performed … . “The exception was enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability”… .

… [T]he use of a portion of the defendant’s residence for commercial purposes did not automatically cause him to lose the protection of the exemption. The presence of an office in the basement did not detract from the building’s primary use as a residence, and the defendant’s commercial activity was incidental thereto … .

… The defendant’s alleged discussion with the injured plaintiff about the scope of the project and the defendant’s request to install a shelf and support beam were insufficient to transform the defendant from a legitimately concerned homeowner into a de facto supervisor, because these acts, without any specific direction as to how the injured plaintiff was to accomplish his tasks, do not constitute direction or control over the manner or method of the injured plaintiff’s work … . Levy v Baumgarten, 2017 NY Slip Op 00963, 2nd Dept 2-8-17

 

LABOR LAW-CONSTRUCTION LAW (BASEMENT OFFICE DID NOT CAUSE DEFENDANT TO LOSE THE HOMEOWNER’S EXEMPTION TO LIABILITY UNDER THE LABOR LAW)/HOMEOWNER’S EXEMPTION (LABOR LAW, BASEMENT OFFICE DID NOT CAUSE DEFENDANT TO LOSE THE HOMEOWNER’S EXEMPTION TO LIABILITY UNDER THE LABOR LAW)

QUESTION OF FACT WHETHER LADDER WAS DEFECTIVE AND WHETHER ADDITIONAL SAFETY DEVICES WERE REQUIRED, SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED.

The Fourth Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action was properly denied. Plaintiff was standing on a closed A-frame ladder when he felt an electric shock and fell:

At the time of the accident, plaintiff was using a 10-foot A-frame ladder to install flashing around a duct. The ladder was folded shut and leaning against the wall while plaintiff was using it. Just before the accident, he was using both hands to take a measurement above his head, while standing on “the fourth or fifth rung” of the ladder, which was “at least four feet off the floor.” As he extended his tape measure, he felt a strong electric shock to his left arm and he fell off the ladder.

Contrary to plaintiff’s contention, we conclude that the court properly denied the motion. “[T]here are questions of fact . . . whether . . . the ladder, which was not shown to be defective in any way, failed to provide proper protection, and whether . . . plaintiff should have been provided with additional safety devices” … . Jones v Nazareth Coll. of Rochester, 2017 NY Slip Op 00825, 4th Dept 2-3-17

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER LADDER WAS DEFECTIVE AND WHETHER ADDITIONAL SAFETY DEVICES WERE REQUIRED, SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER LADDER WAS DEFECTIVE AND WHETHER ADDITIONAL SAFETY DEVICES WERE REQUIRED, SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED)

DEFENDANT DID NOT EXERCISE SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200.

The Second Department determined the masonry contractor, Citnalta, did not exercise sufficient control over plaintiff’s work to be liable under Labor Law 200. Plaintiff, who worked for a subcontractor, was injured when a masonry saw jammed”

Here, Citnalta established its prima facie entitlement to judgment as a matter of law by demonstrating that the subject accident was caused by the means and methods of the plaintiff’s work, that the plaintiff’s work was directed and controlled by his employer, and that it had no authority to exercise supervisory control over his work … . The plaintiff’s evidence of Citnalta’s general supervision of the project and overall compliance with safety standards was insufficient to raise a triable issue of fact in opposition … . Further, contrary to the plaintiff’s contention, he failed to raise a triable issue of fact as to whether his injuries arose from a dangerous or defective premises condition … . Messina v City of New York, 2017 NY Slip Op 00640, 2nd Dept 2-1-17

LABOR LAW-CONSTRUCTIVE LAW (DEFENDANT DID NOT EXERCISE SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)

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