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LABOR LAW 241(6) CAUSES OF ACTION SHOULD SURVIVE SUMMARY JUDGMENT BECAUSE THE ITEMS PLAINTIFF TRIPPED OVER WERE NOT INTEGRAL TO THE WORK BEING DONE BY PLAINTIFF AT THE TIME HE FELL.

The First Department determined Labor Law 241(6) causes action based on the allegation plaintiff tripped on discarded concrete and rebar should survive summary judgment because plaintiff demonstrated the concrete and rebar were not integral to his work:

Plaintiffs established that the excess wet concrete discarded on the plywood on which plaintiff slipped was not integral to the work being performed by plaintiff at the accident site … . Plaintiff did not work with concrete and concrete was not a part of his responsibilities in constructing the tables and forms used to hold the rebar and other ironwork in place. Similarly, the rebar on which plaintiff tripped was not integral to the work he was performing, and defendants’ motion for summary judgment dismissing the claim predicated on 12 NYCRR 23-1.7(e)(2) was correctly denied ,,, . Plaintiff presented evidence that he did not work with rebar and that rebar was not integral to any work being done on the day of the accident. Pereira v New School, 2017 NY Slip Op 01627, 1st Dept 3-2-17

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 241(6) CAUSES OF ACTION SHOULD SURVIVE SUMMARY JUDGMENT BECAUSE THE ITEMS PLAINTIFF TRIPPED OVER WERE NOT INTEGRAL TO THE WORK BEING DONE BY PLAINTIFF AT THE TIME HE FELL)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF FELL OFF MATERIAL STACKED ON A FLATBED TRUCK.

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. He fell from scaffolding materials stacked on a flatbed truck:

Plaintiff’s testimony that he fell from scaffolding materials stacked atop the surface of a flatbed truck, about 10 feet above the ground, and that he was not provided with a safety device that would have prevented his fall, was sufficient to establish his entitlement to partial summary judgment on his Labor Law § 240(1) claim … . Although plaintiff was wearing a safety harness at the time of the accident, there was no place on the truck where the harness could be secured. Idona v Manhattan Plaza, Inc., 2017 NY Slip Op 01444m 1st Dept 2-23-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF FELL OFF MATERIAL STACKED ON A FLATBED TRUCK)/TRUCKS (LABOR LAW-CONSTRUCTION LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION, PLAINTIFF FELL OFF MATERIAL STACKED ON A FLATBED TRUCK)

ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, HE WAS INJURED IN A TEMPORARY FACILITY DOING WORK FOR THE CONSTRUCTION SITE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The First Department, reversing Supreme Court, over a dissent, determined defendants’ motion for summary judgment in this Labor Law 241 (6) action should not have been granted on the ground plaintiff was not injured on a construction site. Plaintiff was not where the construction was being done, but was on a “temporary facility” (Bronx Yard) preparing rebar for the construction site:

Collavino [superstructure concrete contractor], subcontracted by Lend Lease [property owner], which was hired by 56 Leonard [construction manager], was responsible for furnishing “[a]ll temporary Project site facilities” and agreed “to place its Temporary Facilities in locations designated by Owner or Construction Manager.” Additionally, the Temporary License for the Bronx Yard was secured solely by Collavino, and for the purpose of completing work to be “forwarded directly to a construction site in Manhattan.”  Gerrish v 56 Leonard LLC, 2017 NY Slip Op 01262, 1st Dept 2-16-17

LABOR LAW-CONSTRUCTIION LAW (ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, HE WAS INJURED IN A TEMPORARY FACILITY DOING WORK FOR THE CONSTRUCTION SITE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CONSTRUCTION SITE (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF WAS NOT AT THE CONSTRUCTION SITE, HE WAS INJURED IN A TEMPORARY FACILITY DOING WORK FOR THE CONSTRUCTION SITE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

UNCONTESTED TESTIMONY A WHEEL ON A HAND-PROPELLED DEBRIS CONTAINER STOPPED TURNING FREELY AS PLAINTIFF WAS MOVING IT (CAUSING INJURY) REQUIRED DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 241 (6) ACTION.

The First Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this Labor Law 241 (6) action should not have been granted. Plaintiff was using a hand propelled wheeled container containing 500 to 800 pounds of construction debris when, it is alleged, one of the wheels allegedly stopped turning intermittently. When plaintiff pulled hard the container came to rest on his foot. The Industrial Code requires such containers to have “free-running” wheels:

Plaintiff testified that immediately before the alleged accident, he struggled to move the mini-container after the wheel apparently became stuck, and that as a result, he was injured when the mini-container rolled onto his foot when he forcefully pulled it in an attempt to move it. This uncontradicted testimony presents a question of fact on whether the wheels on the mini-container were “free-running” as required by 12 NYCRR 23-1.28(b) … . Ahern v NYU Langone Med. Ctr., 2017 NY Slip Op 01264, 1st Dept 2-16-17

LABOR LAW-CONSTRUCTION LAW (UNCONTESTED TESTIMONY A WHEEL ON A HAND-PROPELLED DEBRIS CONTAINER STOPPED TURNING FREELY AS PLAINTIFF WAS MOVING IT (CAUSING INJURY) REQUIRED DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 241 (6) ACTION)/INDUSTRIAL CODE (LABOR LAW-CONSTRUCTION LAW, UNCONTESTED TESTIMONY A WHEEL ON A HAND-PROPELLED DEBRIS CONTAINER STOPPED TURNING FREELY AS PLAINTIFF WAS MOVING IT (CAUSING INJURY) REQUIRED DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION IN THIS LABOR LAW 241 (6) ACTION)

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QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED, PLAINTIFF DID NOT IDENTIFY ANY INDUSTRIAL CODE VIOLATION, LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED.

The Second Department determined, re: plaintiff’s common law negligence cause of action, there was a question of fact whether defendants had constructive notice of a cracking concrete slap which collapsed. However plaintiff’s Labor Law 241 (6) cause of action should have been dismissed because no applicable provision of the Industrial Code was identified by the plaintiff:

… [T]he defendants submitted, inter alia, the deposition testimony of the plaintiff, in which he stated that for up to 10 days prior to the accident, he observed that the place where the concrete eventually collapsed had “lines . . . indicating the breaking points.” Thus, by their own submissions, the defendants raised an issue of fact as to whether the allegedly dangerous condition was visible and apparent and existed for a sufficient length of time prior to the plaintiff’s fall to permit them to discover and remedy it … . …

In order to establish a Labor Law § 241(6) claim, a plaintiff must allege a violation of a specific and applicable provision of the Industrial Code … . Here, although the plaintiff’s bill of particulars alleged a violation of Labor Law § 241(6), it failed to identify any specific provision of the Industrial Code that the defendants allegedly violated … . Furthermore, in opposition to summary judgment, the plaintiff failed to allege a violation of any specific provision of the Industrial Code, and did not address the issue … . Grabowski v Board of Mgrs. of Avonova Condominium, 2017 NY Slip Op 01185, 2nd Dept 2-15-17

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF DID NOT IDENTIFY ANY INDUSTRIAL CODE VIOLATION, LABOR LAW 241 (6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED)/NJEGLIGENCE (CONSTRUCTIVE NOTICE, QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED)/CONSTRUCTIVE NOTICE (NEGLIGENCE, QUESTION OF FACT WHETHER DEFENDANTS HAD NOTICE OF CRACKED CONCRETE SLAB WHICH COLLAPSED)

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PLAINTIFFS’ MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO CPLR 4401 PROPERLY GRANTED ON THE LABOR LAW 240(1) CAUSE OF ACTION, JURY HAD FOUND THE LABOR LAW 240(1) VIOLATION WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT.

The Second Department determined Supreme Court properly granted plaintiffs’ motion for a judgment as a matter of law (CPLR 4401) on the Labor Law 240 (1) cause of action. Plaintiff fell from the top of a boiler when a co-worker accidentally caused hot water and steam to escape from a valve. The jury found that the Labor Law 240(1) violation was not the proximate cause of the accident:

Here, the evidence adduced at trial, viewed in the light most favorable to the defendant, demonstrated that the defendant failed to provide an adequate safety device to the plaintiff, and that this failure proximately caused the plaintiff’s fall. The fact that the plaintiff’s coworker bumped into the valves, which caused hot water and steam to pour onto the plaintiff and precipitated his fall, was not of such an extraordinary nature or so attenuated from the defendant’s conduct that responsibility for the injury should not reasonably be attributed to it … . Moreover, in light of the statutory violation, even if the plaintiff were negligent in some respect, his comparative negligence would not bar liability under Labor Law § 240(1) … . Raia v Berkeley Coop. Towers Section II Corp., 2017 NY Slip Op 01243, 2nd Dept 2-15-17

LABOR LAW-CONSTRUCTION LAW (PLAINTIFFS’ MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO CPLR 4401 PROPERLY GRANTED ON THE LABOR LAW 240(1) CAUSE OF ACTION, JURY HAD FOUND THE LABOR LAW 240(1) VIOLATION WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT)/PROXIMATE CAUSE (LABOR LAW-CONSTRUCTION LAW, PLAINTIFFS’ MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO CPLR 4401 PROPERLY GRANTED ON THE LABOR LAW 240(1) CAUSE OF ACTION, JURY HAD FOUND THE LABOR LAW 240(1) VIOLATION WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT)/JUDGMENT AS A MATTER OF LAW (CPLR 4401) (PLAINTIFFS’ MOTION FOR JUDGMENT AS A MATTER OF LAW PURSUANT TO CPLR 4401 PROPERLY GRANTED ON THE LABOR LAW 240(1) CAUSE OF ACTION, JURY HAD FOUND THE LABOR LAW 240(1) VIOLATION WAS NOT THE PROXIMATE CAUSE OF THE ACCIDENT)

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)

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