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LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, LIGHTING BAR FELL ON PLAINTIFF WHEN HE WAS DISMANTLING AN EXHIBITION BOOTH.

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment on plaintiff’s Labor Law 240(1) and 241(6) claims should not have been granted.  Plaintiff was dismantling an exhibition booth when a lighting bar fell on him:

Since [plaintiff’s] specific task at the moment the accident occurred was ancillary to and part of the larger demolition job of dismantling the booths, in which he was to participate, plaintiff was engaged in an activity within the purview of Labor Law §§ 240(1) and 241(6) … .

… The lighting bar was an object that required securing to prevent it from becoming dislodged or falling during the work … . Further, in view of the weight of the lighting bar, we cannot conclude as a matter of law that the distance it fell was de minimis … . Nor did defendants demonstrate that any securing device would have defeated the task of removing the lighting bar .. .

12 NYCRR 23-1.8(c)(1), which mandates approved safety hats for persons “required to work or pass within any area where there is a danger of being struck by falling objects or materials,” is sufficiently concrete to give rise to Labor Law § 241(6) liability … . Rutkowski v New York Convention Ctr. Dev. Corp., 2017 NY Slip Op 00555, 1st Dept 1-26-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, LIGHTING BAR FELL ON PLAINTIFF WHEN HE WAS DISMANTLING AN EXHIBITION BOOTH)/DEMOLITION (LABOR LAW, LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, LIGHTING BAR FELL ON PLAINTIFF WHEN HE WAS DISMANTLING AN EXHIBITION BOOTH)/HARD HATS (LABOR LAW 240 (1) AND 241 (6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED, LIGHTING BAR FELL ON PLAINTIFF WHEN HE WAS DISMANTLING AN EXHIBITION BOOTH)

QUESTION OF FACT WHETHER WORK ON AIR CONDITIONER WAS REPAIR COVERED BY LABOR LAW 240(1).

The First Department determined there was a question of fact whether plaintiff was performing routine maintenance or repair of an air conditioner. Routine maintenance would not support a Labor Law 240(1) cause of action, while repair would:

Issues of fact exist as to whether plaintiff was performing routine maintenance, which would not implicate the protections of Labor Law § 240(1), or a repair within the meaning of the statute … , when he diagnosed an air conditioning unit’s malfunction, and replaced a component part. Although plaintiff testified that the compressor contactor malfunctioned due to normal wear and tear … , making it a worn-out component in an otherwise operable air conditioning unit … , and that the entire replacement took only 20 minutes, he also stated that this is not a part that would ordinarily require inspection, adjustment or replacement, and that it generally lasts as long as the compressor and can last the life of the unit, indicating that it was not a recurring event, and that the component was not intended to have a limited life … . Roth v Lenox Terrace Assoc., 2017 NY Slip Op 00402, 1st Dept 1-19-17

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER WORK ON AIR CONDITIONER WAS REPAIR COVERED BY LABOR LAW 240(1))/REPAIR (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER WORK ON AIR CONDITIONER WAS REPAIR COVERED BY LABOR LAW 240(1))/MAINTENANCE (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER WORK ON AIR CONDITIONER WAS REPAIR COVERED BY LABOR LAW 240(1))

HOMEOWNER’S EXCEPTION TO LABOR LAW 240 (1) LIABILITY APPLIED, DEFENDANTS DEMONSTRATED FREEDOM FROM FAULT UNDER LABOR LAW 200.

The First Department determined the defendants’ motion for summary judgment on the Labor Law 240 (1) and Labor Law 200 causes of the action were properly granted. The plaintiff alleged defendants provided him with a defective ladder and debris where the ladder was placed created a dangerous condition. Defendants demonstrated the homeowner’s exception to Labor Law 240 (1) applied and, with respect to Labor Law 200, the defendants demonstrated they did not own the ladder and did not create and were not aware of the debris-related condition on the ground:

… [T]he defendants made a prima facie showing that they were entitled to the protection of the homeowner’s exemption [to Labor Law 240 (1) liability] by submitting evidence demonstrating that the work being performed directly related to the residential use of the cottage and that they did not direct or control the manner in which the plaintiff performed his work … . …

Labor Law § 200 codifies the common-law duty of an owner or contractor to provide employees with a safe place to work … . “To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have authority to exercise supervision and control over the work'” … . Where the plaintiff’s injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a defendant may be liable under Labor Law § 200 ” if it either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition'” … . Where, as here, an accident allegedly involves defects in both the premises and the equipment used at the work site, a defendant moving for summary judgment with respect to an alleged violation of Labor Law § 200 is obligated to address the proof applicable to both liability standards … . A defendant is entitled to summary judgment “only when the evidence exonerates it as a matter of law for all potential concurrent causes of the plaintiff’s accident and injury, and when no triable issue of fact is raised in opposition as to either relevant liability standard” … . Dasilva v Nussdorf, 2017 NY Slip Op 00288, 2nd Dept 1-18-17

 

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER’S EXCEPTION TO LABOR LAW 240 (1) LIABILITY APPLIED, DEFENDANTS DEMONSTRATED FREEDOM FROM FAULT UNDER LABOR LAW 200)/HOMEOWNER’S EXCEPTION (LABOR LAW 240 (1), HOMEOWNER’S EXCEPTION TO LABOR LAW 240 (1) LIABILITY APPLIED)

PLANK USED TO CROSS GAP IN ROOF COLLAPSED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. A plank plaintiff was using to cross a gap in the roof collapsed:

The alleged discrepancies between plaintiff’s account of the accident and the accounts of two of plaintiff’s coworkers are irrelevant to plaintiff’s central contention that he fell when the plank collapsed, and that he was not provided with proper protection … . Moreover, defendant raised no issues of fact as to whether plaintiff was the sole proximate cause of the accident. Even assuming the presence of additional safety devices at the work site, there was no evidence that plaintiff was aware of their availability or that he was expected to use them … . DeFreitas v Penta Painting & Decorating Corp., 2017 NY Slip Op 00277, 1st Dept 1-17-17

LABOR LAW-CONSTRUCTION LAW (PLANK USED TO CROSS GAP IN ROOF COLLAPSED, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION)

PLAINTIFF INJURED BY A PORTION OF A ROOF WHICH FELL ON HIM UNEXPECTEDLY WHEN ANOTHER PORTION OF THE ROOF WAS BEING DEMOLISHED, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED, PROPERTY MANAGER COULD BE LIABLE AS AGENT OF OWNER.

The First Department determined defendant’s motion for summary judgment on the Labor Law 240(1) cause of action was properly denied. Plaintiff was injured when a portion of a roof fell on him unexpectedly when another portion of the roof was being demolished. The court further determined the property manager could be held liable as the agent of the owner:

Since that part of the roof above plaintiff was not the intended target of demolition at the time of the collapse, Supreme Court properly denied defendants’ motion for summary judgment dismissing the Labor Law § 241(6) cause of action … .

Furthermore, defendant Gibraltar Management Co., Inc. was the manager of the property, which handled all activities related to its management and contracted with RA Lynch Excavating for the demolition of the building. Accordingly, it may be held liable as an agent of the owner pursuant to Labor Law § 240(1) and § 241(6) … . Ragubir v Gibraltar Mgt. Co., Inc., 2017 NY Slip Op 00265, 1st Dept 1-17-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF INJURED WHEN A PORTION OF A ROOF FELL ON HIM UNEXPECTEDLY WHEN ANOTHER PORTION OF THE ROOF WAS BEING DEMOLISHED, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED)/DEMOLITION (LABOR LAW-CONSTRUCTION LAW,  (PLAINTIFF INJURED WHEN A PORTION OF A ROOF FELL ON HIM UNEXPECTEDLY WHEN ANOTHER PORTION OF THE ROOF WAS BEING DEMOLISHED, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DENIED)/AGENT (LABOR LAW-CONSTRUCTION LAW, PROPERTY MANAGER COULD BE LIABLE AS AGENT OF OWNER)/PROPERTY MANAGER (LABOR LAW-CONSTRUCTION LAW, PROPERTY MANAGE COULD BE LIABLE AS AGENT OF OWNER)

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QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200.

The First Department determined there was a question of fact whether defendant site safety consultant exercised sufficient supervisory control to support the Labor Law 200 cause of action:

The motion court properly found a material question of fact as to whether ELI, the site safety consultant employed by plaintiff[‘s] … employer, had supervisory control and authority over the work being done when plaintiff was injured, and can be held liable for plaintiff’s injuries under the Labor Law as an agent of the owner or general contractor. …  ELI’s principal testified that the responsibility of a site safety consultant was to consult with and make recommendations to the foreman, project manager or superintendent should he or she observe a potentially unsafe condition. However, the agreement under which ELI performed its services for plaintiff’s employer … provided that the site safety consultant, in addition to making inspections of the work place to ascertain a safe operating environment, was to “[t]ake necessary and timely corrective actions to eliminate all unsafe acts and/or conditions,” and “[p]erform all related tasks necessary to achieve the highest degree of safety.”  Oliveri v City of New York, 2017 NY Slip Op 00237, 1st Dept 1-12-17

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)/EVIDENCE (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)/SAFETY CONSULTANT (LABOR LAW-CONSTRUCTION LAW, QUESTION OF FACT WHETHER SITE SAFETY CONSULTANT EXERCISED SUFFICIENT CONTROL OVER PLAINTIFF’S WORK TO BE LIABLE UNDER LABOR LAW 200)

LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, determined plaintiff should have been granted summary judgment on his Labor Law 240(1) cause of action. Plaintiff fell when a wooden ladder which was part of the structure of the building (for access to the attic) shifted when he attempted to step onto it:

Plaintiff’s testimony that the ladder shifted as he descended, thus causing his fall, established a prima facie violation of Labor Law § 240(1) … . The affidavit submitted by defendant averring that plaintiff had told his employer that he fell when attempting to descend the ladder using one hand as he carried tools or equipment in the other and missed a rung with his free hand, failed to refute plaintiff’s testimony that the ladder shifted and failed to create triable issues of fact that plaintiff’s actions were the sole proximate cause of the accident. Plaintiff also denies making the statement.

Further, we reject defendant’s contention that issues of fact exist as to whether plaintiff may be the sole proximate cause of the accident for failing to use the ladder, safety harness and rope provided by his employer. While the vice-president of plaintiff’s employer stated in an affidavit that safety harnesses and other safety devices were available to plaintiff, the affidavit was vague as to what other unspecified safety devices were available, to what plaintiff should have attached the harness, or whether there were any available anchorage points … . Defendant further fails to explain how a rope that was used to hoist materials to the attic area where plaintiff was working could be used as a safety device, and plaintiff’s decision to use the ladder already in place cannot be the sole proximate cause of his accident where he was never instructed not to use it … . Garcia v Church of St. Joseph of the Holy Family of the City of N.Y., 2017 NY Slip Op 00239, 1st Dept 1-12-17

LABOR LAW-CONSTRUCTION LAW (LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)/LADDERS (LABOR LAW-CONSTRUCTION LAW, LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)/SOLE PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, LADDER SHIFTED, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)

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SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED.

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff alleged he fell from an unsecured ladder while attempting to move to a baker’s scaffold. Unverified documents contesting plaintiff’s allegations were not sufficient to defeat summary judgment:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the issue of liability under Labor Law § 240(1), through his affidavit stating that he was not provided with any safety equipment that could have protected him while performing his work alone on the ladder and scaffold … . Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker “proper protection,” absolute liability is inescapable under Labor Law § 240(1) … . Thus, in opposition, defendants were required to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact to preclude summary judgment … . * * *

Records without proper certification may be considered in opposition to a motion for summary judgment, but only when they are not the sole basis for the court’s determination … . Here, the unverified documents and unsworn statement are the only evidence to challenge details of plaintiff’s version of the accident and therefore should not be considered. Erkan v McDonald’s Corp., 2017 NY Slip Op 00099, 1st Dept 1-10-17

 

LABOR LAW-CONSTRUCTION LAW (SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED)/EVIDENCE (SUMMARY JUDGMENT, SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED)/SUMMARY JUDGMENT (EVIDENCE, UMMARY JUDGMENT IN FAVOR OF PLAINTIFF ON HIS LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED, UNCERTIFIED DOCUMENTS IN OPPOSITION SHOULD NOT HAVE BEEN CONSIDERED)

DEFENDANT CON EDISION EXERCISED SUFFICIENT CONTROL OVER THE MANNER OF PLAINTIFF’S WORK TO SUPPORT THE LABOR LAW 200 VERDICT, MOTION TO SET ASIDE THE VERDICT SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, over an extensive dissent, determined defendant Con Edison’s motion to set aside the verdict in this asbestos-injury case should not have been granted. Con Edison was deemed to have sufficient control over the manner of plaintiff’s work (applying concrete mixed with asbestos) to support the Labor Law 200 cause of action:

The evidence at trial demonstrated that Con Edison had the “authority to control the activity bringing about the injury” … . “[A]n implicit precondition to this duty is that the party to be charged with that obligation have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition” … . * * *

Con Edison had the ability to prevent the hazard ultimately causing the plaintiff’s injury, namely, the application of asbestos-containing materials. Indeed, Con Edison’s specifications affirmatively required the use of hazardous asbestos-containing insulation materials, and Con Edison monitored work for compliance with those specifications. Matter of New York Asbestos Litig., 2017 NY Slip Op 00098, 1st Dept 1-10-17

 

LABOR LAW-CONSTRUCTION LAW (DEFENDANT CON EDISION EXERCISED SUFFICIENT CONTROL OVER THE MANNER OF PLAINTIFF’S WORK TO SUPPORT THE LABOR LAW 200 VERDICT, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN DENIED)

FAILURE TO TIE OFF HARNESS WAS NOT THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF KNEW OF A SAFE PLACE TO TIE OFF, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION.

The First Department determined plaintiff was entitled to summary judgment on both his Labor Law 240(1) and 241(6) causes of action. Defendants argued that plaintiff’s failure to tie off a harness was the sole proximate cause for the accident (a fall from an elevated platform). The First Department found that defendants did not demonstrate plaintiff had been instructed where to tie off, and did not demonstrate plaintiff knew where to tie off:

Plaintiff established prima facie that while subjected to an elevation-related risk, he was injured due to defendants’ failure to provide him with proper fall protection, namely, an appropriate place to which to attach his harness. Anderson v MSG Holdings, L.P., 2017 NY Slip Op 00002, 1st Dept 1-3-17

LABOR LAW-CONSTRUCTIO LAW (FAILURE TO TIE OFF HARNESS WAS NOT THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF KNEW OF A SAFE PLACE TO TIE OFF, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION)/HARNESS (LABOR LAW-CONSTRUCTION LAW, FAILURE TO TIE OFF HARNESS WAS NOT THE SOLE PROXIMATE CAUSE OF PLAINTIFF’S FALL, DEFENDANTS DID NOT DEMONSTRATE PLAINTIFF KNEW OF A SAFE PLACE TO TIE OFF, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION)

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