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LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED, EVENT NOT RELATED TO THE FORCE OF GRAVITY.

The First Department determined summary judgment dismissing plaintiff’s Labor Law 240(1) cause of action was properly granted. Plaintiff was cutting a steel beam when it sprang up, striking him in the face. The event was not related to the force of gravity:

The Labor Law § 240(1) claim was correctly dismissed, because the record demonstrates that plaintiff’s injuries were not the result of a failure to provide proper protection against “the application of the force of gravity to an object or person” … , but rather the result of the propulsion of the vertical beam upward by “the kinetic energy of the sudden release of tensile stress in the [beam]” … . Quishpi v 80 WEA Owner, LLC, 2016 NY Slip Op 08324, 1st Dept 12-13-16

LABOR LAW-CONSTRUCTION LAW (LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED, EVENT NOT RELATED TO THE FORCE OF GRAVITY)

QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE WORK TO BE LIABLE UNDER LABOR LAW 200 AS AN AGENT OF THE OWNER AND GENERAL CONTRACTOR.

The First Department determined there were questions of fact whether defendant (Premiere) exercised sufficient control over the work to be liable as an agent of the owner and general contractor pursuant to Labor Law 200. Plaintiff, who worked for the building where the work was being done, tripped over a worker’s tool bag which had been left in the vicinity of a staircase. The decision gives some insight into the level of control and supervision necessary for Labor Law 200 liability:

Given its responsibilities regarding the construction work – responsibilities that resemble those of a construction manager – there are issues of fact as to whether Premiere was a statutory agent of the owner and general contractor, i.e., whether it exercised general control over the work site … , rather than the exclusive control that it claims on appeal. Premiere CEO Grimes’s testimony supports plaintiff’s claim that Premiere exercised general control over the work site. Not only did Grimes hire and schedule the repair people and oversee the quality of their work, but he also interacted with construction teams on a day-to-day basis, told them if he was displeased with work, made decisions about the work, and reminded the teams to move materials around to insure clear access to apartments and stairways. He was authorized to shut down the job “if there was a dangerous or unsafe condition,” and before plaintiff’s injury he and the superintendent spoke with … workers about not leaving tools and construction dust in the common areas. From theses facts, a jury could find that Premiere exercised general control. Burgos v Premiere Props., Inc., 2016 NY Slip Op 08317, 1st Dept 12-13-16

 

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER DEFENDANT EXERCISED SUFFICIENT CONTROL OVER THE WORK TO BE LIABLE UNDER LABOR LAW 200 AS AN AGENT OF THE OWNER AND GENERAL CONTRACTOR)

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QUESTIONS OF FACT WHETHER DEFENDANT SUPERVISED AND DIRECTED PLAINTIFF’S WORK AND WHETHER PLAINTIFF WAS A SPECIAL EMPLOYEE UNDER THE WORKERS’ COMPENSATION LAW, DEFENDANT’S MOTION TO DISMISS THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DENIED.

With respect to one of the defendants (Irwin) the Second Department determined Supreme Court should have denied the defendant’s motion for summary judgment on the Labor Law 200 and common-law negligence claims. Plaintiff injured his knee carrying a 200 pound, 30 foot beam. The defendant’s own submission raised questions of fact about whether defendant supervised and directed plaintiff’s work, and whether plaintiff was a “special employee” such that his only remedy was Workers’ Compensation benefits:

The Supreme Court erred, however, in determining that Irwin was entitled to summary judgment dismissing the Labor Law § 200 and common-law negligence claims against it. The evidence submitted by Irwin in support of its summary judgment motion demonstrated that Irwin supervisors were present at the construction site every day supervising the work, and that these supervisors gave the plaintiff his daily work assignments. The plaintiff testified at his deposition, a transcript of which was submitted in support of Irwin’s motion, that on the date of the accident, an Irwin supervisor assigned him to the task of moving the rafters, unassisted, and instructed the plaintiff to retrieve specific equipment in furtherance of the task. When the plaintiff complained to the supervisor about the manner in which the work was to be performed, the supervisor told him to “just do it.” …

Pursuant to Workers’ Compensation Law §§ 11 and 29(6), an employee injured during the course of his employment is limited to recovering Workers’ Compensation benefits, and is not entitled to bring an action against the employer. This exclusive remedy rule also applies to a “special employee,” defined as “one who is transferred for a limited time of whatever duration to the service[s] of another”… . Whether a special employment relationship exists is generally an issue of fact … , and requires consideration of many factors, the most of important of which is who directs and controls the manner, details, and ultimate result of the employee’s work … . Additionally, the employee must have had knowledge of, and consented to, the special employment relationship … . As discussed above, the evidence submitted by Irwin raised a triable issue of fact as to whether Irwin had the authority to supervise and control the manner in which the plaintiff performed his work. Likewise, the evidence submitted by Irwin raised a triable issue of fact as to whether Irwin had the “exclusive right to control and direct the manner, details, and ultimate result” of the plaintiff’s work, such that a special employment relationship was created … . Additionally, Irwin failed to submit evidence demonstrating that the plaintiff had knowledge of, and consented to, a special employment relationship … . Zupan v Irwin Contr., Inc., 2016 NY Slip Op 08229, 2nd Dept 12-7-16

 

LABOR LAW-CONSTRUCTION LAW (QUESTIONS OF FACT WHETHER DEFENDANT SUPERVISED AND DIRECTED PLAINTIFF’S WORK AND WHETHER PLAINTIFF WAS A SPECIAL EMPLOYEE UNDER THE WORKERS’ COMPENSATION LAW, DEFENDANT’S MOTION TO DISMISS THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DENIED)/WORKERS’ COMPENSATION LAW (QUESTIONS OF FACT WHETHER DEFENDANT SUPERVISED AND DIRECTED PLAINTIFF’S WORK AND WHETHER PLAINTIFF WAS A SPECIAL EMPLOYEE UNDER THE WORKERS’ COMPENSATION LAW, DEFENDANT’S MOTION TO DISMISS THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DENIED)

LABOR LAW CLAIMS PROPERLY DISMISSED, DEFENDANT WAS NOT AN AGENT OF THE OWNER OR CONTRACTOR, DID NOT CONTROL THE MANNER OF WORK, DID NOT CREATE THE DANGEROUS CONDITION, AND DID NOT HAVE NOTICE OF THE DANGEROUS CONDITION.

The Second Department determined plaintiff’s Labor Law 240(1), 241(6) and 200 causes of action against Dynatec were properly dismissed. Dynatec demonstrated it was not an agent of the owner or contractor, did not control the manner of the work, did not create the dangerous condition, and did not have notice of the dangerous condition. Apparently plaintiff was injured twice, once falling from a ladder and a second time falling down stairs:

Labor Law §§ 240(1) and 241(6) insofar as asserted against it. “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, Dynatec established its prima facie entitlement to judgment as a matter of law dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against it by demonstrating that it lacked the authority to supervise or control the plaintiff’s work … . Specifically, Dynatec offered evidence indicating that its role at the worksite was to ensure compliance with design plans through weekly visits lasting no more than three hours. In opposition, the plaintiff failed to raise a triable issue of fact … . …

Dynatec established its prima facie entitlement to judgment as a matter of law dismissing the common-law negligence and Labor Law § 200 causes of actions insofar as asserted against it by submitting evidence demonstrating that it did not control the methods or materials of the plaintiff’s work, did not create the dangerous conditions that allegedly caused the accidents, and did not have actual or constructive notice of the dangerous conditions … . Vazquez v Humboldt Seigle Lofts, LLC, 2016 NY Slip Op 08225, 2nd Dept 12-7-16

 

LABOR LAW-CONSTRUCTION LAW (LABOR LAW CLAIMS PROPERLY DISMISSED, DEFENDANT WAS NOT AN AGENT OF THE OWNER OR CONTRACTOR, DID NOT CONTROL THE MANNER OF WORK, DID NOT CREATE THE DANGEROUS CONDITION, AND DID NOT HAVE NOTICE OF THE DANGEROUS CONDITION)

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION, LADDER KICKED OUT FROM UNDER HIM.

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. There was evidence the ladder kicked out from under plaintiff. There was no need to show the ladder was defective. It was enough the ladder was not secured:

Plaintiff established his entitlement to partial summary judgment on his Labor Law § 240(1) claim through witnesses’ testimony that the ladder from which he was descending suddenly kicked out to the left, resulting in his fall … . Contrary to the motion court’s finding, plaintiff was not required to demonstrate that the ladder was defective in order to satisfy his prima facie burden … .

In opposition, defendants failed to raise a triable issue of fact as to whether plaintiff was the sole proximate cause of the accident. Plaintiff was not responsible for setting up the ladder, and there was no testimony establishing the existence of any other readily available, adequate safety devices at the work site … . Furthermore, given the undisputed testimony that the ladder kicked out because it was unsecured, the testimony that plaintiff unsafely descended from the ladder by carrying pipe fittings in his arms established, at most, “contributory negligence, a defense inapplicable to a Labor Law § 240(1) claim” … . Fletcher v Brookfield Props., 2016 NY Slip Op 08105, 1st Dept 12-1-16

 

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION, LADDER KICKED OUT FROM UNDER HIM)/LADDERS (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION, LADDER KICKED OUT FROM UNDER HIM)

FALLING PLYWOOD NOT ACTIONABLE UNDER LABOR LAW 240 (1), PLYWOOD WAS NOT BEING HOISTED AND WAS NOT REQUIRED TO BE SECURED, LABOR LAW 246 (1) CAUSE OF ACTION PROPERLY SURVIVED.

The Second Department determined plaintiff’s Labor Law 240 (1) cause of action, based upon injury caused by a falling piece of plywood, was properly dismissed because the plywood was not being hoisted and did not need to be secured. Plaintiff’s 241 (6) cause of action was properly allowed to proceed:

… [T]he Supreme Court correctly determined that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging violations of Labor Law § 240(1) by submitting the deposition transcript of [defendant’s] superintendent, which demonstrated that the plywood that fell was not being hoisted or secured and did not require securing for the purposes of the undertaking at the time it fell … . * * *

As to the Labor Law § 241(6) cause of action, which was predicated upon a violation of 12 NYCRR 23-1.7(a)(1), the Supreme Court … correctly determined that … the defendants established their prima facie entitlement to judgment as a matter of law based upon the plaintiff’s supervisor’s affidavit, in which he averred that the area where the plaintiff was working was not normally exposed to falling material or objects (see 12 NYCRR 23-1.7[a][1]…). In opposition, the plaintiff raised a triable issue of fact by submitting the plaintiff’s supervisor’s deposition testimony, in which he testified, in contradiction to his affidavit, that it was known that objects were “always” falling at the plaintiff’s worksite, and that objects fell “sometimes” and “once in a while” … . Millette v Tishman Constr. Corp., 2016 NY Slip Op 08053, 2nd Dept 11-30-16

 

LABOR LAW-CONSTRUCTION LAW (FALLING PLYWOOD NOT ACTIONABLE UNDER LABOR LAW 240 (1), NOT BEING HOISTED OR REQUIRED TO BE SECURED, LABOR LAW 246 (1) CAUSE OF ACTION PROPERLY SURVIVED)

ALTHOUGH PLAINTIFF WAS ON A LADDER WHEN INJURED, THE INJURY WAS NOT CAUSED BY GRAVITY, LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DISMISSED, DEFENDANT DID NOT HAVE SUFFICIENT CONTROL OVER THE INJURY-PRODUCING WORK TO BE LIABLE UNDER LABOR LAW 200.

The Second Department determined plaintiff’s Labor Law 240 (1) and 200 causes of action were properly dismissed. Plaintiff was on a ladder bolting an elevated steel beam when a forklift struck another (connected) beam pinning plaintiff’s arm between the beam he was working on and the wall. The injury was deemed unrelated to the force of gravity. In addition the court found that defendant did not exercise sufficient control over the injury-producing work to be liable under Labor Law 200. However, certain Labor Law 241 (6) causes of action, alleging the injury was linked to violations of the industrial code, should not have been dismissed:

Labor Law § 240(1) ” was designed to provide exceptional protection for workers against the special hazards which stem from a work site that is either elevated or positioned below the level where materials are hoisted or secured'” … . Its purpose is “to protect construction workers not from routine workplace risks, but from the pronounced risks arising from construction work site elevation differentials” … . Merely because “a worker is injured while working above ground does not ipso facto mean that the injury resulted from an elevation-related risk contemplated by Section 240(1) of the Labor Law” … . * * *

To be held liable under Labor Law § 200 for injuries arising from the manner in which work is performed, a defendant must have the authority to exercise supervision and control over the work … . ” A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed'” … . ” [T]he right to generally supervise the work, stop the contractor’s work if a safety violation is noted, or to ensure compliance with safety regulations and contract specifications is insufficient to impose liability under Labor Law § 200 or for common-law negligence'”… . Guallpa v Canarsie Plaza, LLC, 2016 NY Slip Op 08046, 2nd Dept 11-30-16

 

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH PLAINTIFF WAS ON A LADDER WHEN INJURED, THE INJURY WAS NOT CAUSED BY GRAVITY, LABOR LAW 240 (1) CAUSE OF ACTION PROPERLY DISMISSED, DEFENDANT DID NOT HAVE SUFFICIENT CONTROL OVER THE INJURY-PRODUCING WORK TO BE LIABLE UNDER LABOR LAW 200)

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FALL FROM SCAFFOLD WITH NO SIDE RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED.

LABOR LAW-CONSTRUCTION LAW, CIVIL PROCEDURE, EVIDENCE.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff fell from a Baker’s scaffold that had no side rails. Although hearsay can be submitted in opposition to a summary judgment motion, the motion will not be defeated by hearsay alone (the case here). The court noted that the plaintiff’s unsigned deposition transcript was properly considered because it was certified by the reporter, its accuracy was not challenged by the defendant, and plaintiff adopted it as accurate by submitting it:

Plaintiff was entitled to summary judgment on his Labor Law § 240(1) claim where he fell from a six-foot-high Baker’s scaffold, which he was directed to use in order to plaster a ceiling. The record shows that the scaffold “had no side rails, and no other protective device was provided to protect him from falling off the sides” … . …

… [T]he statement in the affidavit of [defendant’s] owner that a subcontractor had assured him that the subcontractor had instructed all his employees to use the lifeline, belt and harness is insufficient raise a triable issue of fact as to whether plaintiff may be the sole proximate cause for disregarding such an instruction … . While hearsay may be considered in opposition to defeat a summary judgment motion if it is not the only evidence upon which opposition to the motion is predicated, because it was the only evidence establishing that plaintiff disregarded an instruction to use the safety devices, it is insufficient to defeat plaintiff’s motion … . Chong v 457 W. 22nd St. Tenants Corp., 2016 NY Slip Op 07997, 1st Dept 11-29-16

 

LABOR LAW-CONSTRUCTION LAW (FALL FROM SCAFFOLD WITH NO SIDE RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/CIVIL PROCEDURE (HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/EVIDENCE (HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/SCAFFOLDS (FALL FROM SCAFFOLD WITH NO SIDE RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)/SUMMARY JUDGMENT (HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED)

SCAFFOLD DID NOT HAVE A SAFETY RAILING, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON 240 (1) CAUSE OF ACTION.

The First Department determined plaintiff was properly awarded summary judgment in this Labor Law 240(1) action. Plaintiff fell from a scaffold which did not have safety railings. Any comparative negligence on plaintiff’s part (not locking the wheels) was irrelevant:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on the Labor Law § 240(1) claim by presenting undisputed evidence that he “fell off a scaffold without guardrails that would have prevented his fall” … . Plaintiff’s alleged “failure to use the locking wheel devices and his movement of the scaffold while standing on it” were at most comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Celaj v Cornell, 2016 NY Slip Op 07996, 1st Dept 11-29-16

LABOR LAW-CONSTRUCTION LAW (SCAFFOLD DID NOT HAVE A SAFETY RAILING, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON 240 (1) CAUSE OF ACTION)/SCAFFOLDS (SCAFFOLD DID NOT HAVE A SAFETY RAILING, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON 240 (1) CAUSE OF ACTION)

PLAINTIFF WHO FELL FROM A-FRAME LADDER AFTER AN ELECTRICAL SHOCK NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION.

The Court of Appeals, reversing (modifying) the Appellate Division, determined plaintiff was not entitled to summary judgment on his Labor Law 240 (1) cause of action. Defendant fell from an A-frame ladder after receiving an electrical shock:

Plaintiff is not entitled to summary judgment under Labor Law § 240 (1). While using an A-frame ladder, plaintiff fell after receiving an electrical shock. Questions of fact exist as to whether the ladder failed to provide proper protection, and whether plaintiff should have been provided with additional safety devices … . Nazario v 222 Broadway, LLC, 2016 NY Slip Op 07823, CtApp 11-21-16

LABOR LAW (PLAINTIFF WHO FELL FROM A-FRAME LADDER AFTER AN ELECTRICAL SHOCK NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION)/LADDERS (LABOR LAW, PLAINTIFF WHO FELL FROM A-FRAME LADDER AFTER AN ELECTRICAL SHOCK NOT ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240 (1) CAUSE OF ACTION)

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