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FALL OFF BACK OF FLATBED TRUCK WARRANTED SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION.

The First Department determined plaintiff’s motion for summary judgment on his Labor Law 240 (1) cause of action should have been granted. Plaintiff was knocked off the back of a flatbed truck. The Labor Law 241(6) cause of action was properly dismissed (no sufficiently specific industrial code regulation applied). And defendants’ control over the injury-producing work was insufficient to support the Labor Law 200 cause of action:

The injured plaintiff testified that a metal beam, while being placed on a flatbed truck, fell off the blades of a forklift, slamming plaintiff’s foot and causing him to fall off the truck. This unrefuted testimony established prima facie that “plaintiff’s injuries were the direct consequence of a failure to provide adequate protection against a risk arising from a physically significant elevation differential” and therefore that liability exists under Labor Law § 240(1) … . The cases that defendants rely on are inapposite, since they involve not objects falling on or toward workers on flatbeds but workers falling from flatbeds, implicating only the adequacy of safety devices for falling workers, which is not at issue here … .

Nor was plaintiff the sole proximate cause of his injuries since the injuries “were caused at least in part by the lack of safety devices to check the beam’s descent as well as the manner in which [his coworker] lowered the beam” … . McLean v Tishman Constr. Corp., 2016 NY Slip Op 07754, 1st Dept 11-17-16

LABOR LAW-CONSTRUCTION LAW (FALL OFF BACK OF FLATBED TRUCK WARRANTED SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION)/FLATBED TRUCK (LABOR LAW, (FALL OFF BACK OF FLATBED TRUCK WARRANTED SUMMARY JUDGMENT ON LABOR LAW 240 (1) CAUSE OF ACTION)

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MAKESHIFT TABLE SAW, MADE FROM A PORTABLE SAW, SUBJECT TO INDUSTRIAL CODE PROVISION REQUIRING GUARDS ON TABLE SAWS, UNTIMELY SUMMARY JUDGMENT MOTION BASED ON GROUNDS IDENTICAL TO A TIMELY MOTION BROUGHT BY ANOTHER PARTY SHOULD BE CONSIDERED.

The Second Department determined plaintiff’s Labor Law 241 (6) cause of action should not have been dismissed. Although the specific Industrial Code regulation relied upon by plaintiff was not identified in the pleadings no prejudice resulted from any delay in identifying it. Plaintiff’s thumb was severed using a makeshift table saw consisting of a circular saw attached to the bottom of a table. Supreme Court held the Industrial Code regulation requiring a guard on a table saw did not apply to a portable saw. However, the portable saw was being used as a table saw, thus the regulation applied. The Second Department also noted that an otherwise untimely motion or cross motion for summary judgment should be considered if the issues raised are identical to a timely summary judgment motion made by another party. Here portions of the untimely motion were identical to the timely motion, but other portions were not. The identical portions should have been considered:

12 NYCRR 23-1.12(c)(2) requires that “[e]very power-driven saw, other than a portable saw, . . . be equipped with a guard which covers the saw blade to such an extent as will prevent contact with the teeth.” The Supreme Court incorrectly concluded that this provision was inapplicable to the facts of this case because it applies to table saws, not portable saws. “[W]hen determining the applicability of a regulation,” the court must “take into consideration the function of a piece of equipment, and not merely the name” … . The circular saw at issue was being used as a table saw at the time of the plaintiff’s accident, and, thus, the same safety precautions as are required for other power-driven table saws are applicable … . Accordingly, the branch of [defendant’s] motion which was for summary judgment dismissing the Labor Law § 241(6) cause of action insofar as asserted against him should have been denied. …

Although [defendant’s] cross motion was untimely, an untimely motion or cross motion for summary judgment may be considered by the court where a timely motion for summary judgment was made on nearly identical grounds … . The branch of [defendant’s] cross motion which was for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it was not made on grounds nearly identical to the similar branch of [the] timely motion, since it rested on the separate factual assertion that it did not exercise supervisory control over the work. Sheng Hai Tong v K & K 7619, Inc., 2016 NY Slip Op 07637, 2nd Dept 11-16-16

LABOR LAW-CONSTRUCTION LAW (MAKESHIFT TABLE SAW, MADE FROM A PORTABLE SAW, SUBJECT TO INDUSTRIAL CODE PROVISION REQUIRING GUARDS ON TABLE SAWS)/CIVIL PROCEDURE (UNTIMELY SUMMARY JUDGMENT MOTION BASED ON GROUNDS IDENTICAL TO A TIMELY MOTION BROUGHT BY ANOTHER PARTY SHOULD BE CONSIDERED)/SUMMARY JUDGMENT, MOTIONS FOR (UNTIMELY SUMMARY JUDGMENT MOTION BASED ON GROUNDS IDENTICAL TO A TIMELY MOTION BROUGHT BY ANOTHER PARTY SHOULD BE CONSIDERED)/TABLE SAWS (LABOR LAW, MAKESHIFT TABLE SAW, MADE FROM A PORTABLE SAW, SUBJECT TO INDUSTRIAL CODE PROVISION REQUIRING GUARDS ON TABLE SAWS)

FALL FROM A SCAFFOLD DID NOT WARRANT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE THE FAILURE TO PROVIDE PROPER PROTECTION.

The Second Department determined summary judgment should not have been granted to plaintiff on his Labor Law 240 (1) cause of action. Plaintiff fell from a scaffold but his papers did not make out a prima facie case:

To establish liability pursuant to Labor Law § 240(1), a plaintiff must show that the statute was violated, and that the violation was a proximate cause of his or her injuries … . The mere fact that a plaintiff fell from a scaffold ” does not establish, in and of itself, that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury'” … . Here, the plaintiff’s own submissions demonstrated the existence of triable issues of fact as to how the accident occurred and it cannot be concluded, as a matter of law, that the alleged failure to provide him with protection proximately caused his injuries … . Karwowski v Grolier Club of City of N.Y., 2016 NY Slip Op 07625, 2nd Dept 11-16-16

LABOR LAW-CONSTRUCTION LAW (FALL FROM A SCAFFOLD DID NOT WARRANT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE THE FAILURE TO PROVIDE PROPER PROTECTION)/SCAFFOLDS (FALL FROM A SCAFFOLD DID NOT WARRANT SUMMARY JUDGMENT ON PLAINTIFF’S LABOR LAW 240 (1) CAUSE OF ACTION, PLAINTIFF DID NOT DEMONSTRATE THE FAILURE TO PROVIDE PROPER PROTECTION)

PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS.

The Fourth Department, over a two-justice dissent, reversing Supreme Court, determined plaintiff’s motion papers in the Labor Law 240(1) action raised a triable issue of fact whether his failure to use an available ladder was the sole proximate cause of his fall from a wall. Plaintiff’s motion must therefore be denied without any need to consider the opposing papers:

Liability under section 240 (1) does not attach when the safety devices that [the] plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and [the] plaintiff knew he [or she] was expected to use them but for no good reason chose not to do so, causing an accident” … . Under those circumstances, the “plaintiff’s own negligence is the sole proximate cause of his [or her] injury” … .

Where the plaintiff’s submissions in support of the motion raise a triable issue of fact whether his or her own actions were the sole proximate cause of the injury, the plaintiff has failed to make a prima facie showing of entitlement to judgment as a matter of law on the issue of liability because “if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation” … . In this case, plaintiff’s submissions raised triable issues of fact whether plaintiff knew that he was expected to use a readily available ladder at the work site to perform his task, but for no good reason chose not to do so, and whether he would not have been injured had he not made that choice … . Scruton v Acro-Fab Ltd., 2016 NY Slip Op 07428, 4th Dept 11-10-16

 

LABOR LAW (PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)/SOLE PROXIMATE CAUSE (LABOR LAW 240(1), PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)/LADDERS (LABOR LAW 240(1), PLAINTIFF’S MOTION PAPERS RAISED A QUESTION OF FACT WHETHER HIS FAILURE TO USE A LADDER WAS THE SOLE PROXIMATE CAUSE OF HIS FALL, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED WITHOUT REFERENCE TO THE OPPOSING PAPERS)

A TWO-FOOT DEEP TRENCH WAS NOT AN ELEVATION HAZARD OR A HAZARDOUS OPENING.

The Second Department determined defendant was entitled to summary judgment dismissing the Labor Law 240(1) and 241(6) causes of action. Plaintiff alleged he was pulled into a two-foot deep trench while holding a cable. The court held the hazard was not “elevation-related” and the two-foot deep trench was not a “hazardous opening:”

The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff’s alleged injuries were not caused by the elevation or gravity-related hazards encompassed by Labor Law § 240(1) … . …

… [T]he defendants made a prima facie showing of entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241(6) by demonstrating, inter alia, that 12 NYCRR 23-1.7(b)(1), which is the only Industrial Code provision upon which the plaintiff presently relies, is inapplicable to the facts of this case. That provision provides, in pertinent part, that “[e]very hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing” (12 NYCRR 23-1.7[b][1][i]). Although this provision is sufficiently specific to support a cause of action under Labor Law § 241(6) … , the trench in this particular case, which was only two feet deep, is not a hazardous opening within the meaning of 12 NYCRR 23-1.7(b)(1) … . Palumbo v Transit Tech., LLC, 2016 NY Slip Op 07305, 2nd Dept 11-9-16

 

LABOR LAW-CONSTRUCTION LAW (A TWO-FOOT DEEP TRENCH WAS NOT AN ELEVATION HAZARD OR A HAZARDOUS OPENING)

FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY.

The Second Department determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff fell when he attempted to descend a 28-foot ladder. Apparently a 40-foot ladder would have been safer, but there was no showing a 40-foot ladder was available. Therefore plaintiff’s use of a 28-foot ladder could not be the sole proximate cause of his injury:

… [T]he plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that he was injured when he fell while descending an unsecured, 28-foot ladder, and that he was not provided with a safety device to prevent him from falling … . Contrary to Halsted’s (defendant’s) contention, it failed to raise a triable issue of fact as to whether the plaintiff’s decision to use a 28-foot ladder, rather than a 40-foot ladder, was the sole proximate cause of his injuries. The record reveals that there were no 40-foot ladders readily available to the plaintiff on the date of his accident, and that a Halsted employee nevertheless instructed the plaintiff that he was required to complete his job, or be fired. Under these circumstances, the plaintiff’s use of the 28-foot ladder cannot be said to be the sole proximate cause of his injuries … . Pacheco v Halsted Communications, Ltd., 2016 NY Slip Op 07303, 2nd Dept 11-9-16

LABOR LAW-CONSTRUCTION LAW (FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY)/LADDERS (FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY)/SOLE PROXIMATE CAUSE (LABOR LAW, FALL WHEN DESCENDING A 28-FOOT LADDER ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, APPARENTLY A 40-FOOT LADDER WOULD HAVE BEEN SAFER BUT NONE WAS AVAILABLE, THEREFORE USE OF THE SHORTER LADDER COULD NOT BE THE SOLE PROXIMATE CAUSE OF THE INJURY)

REPAIR OF AN AIR CONDITIONER WAS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240(1) OR 246(1), LADDER WAS NOT DEFECTIVE AND DEFENDANT DID NOT CONTROL PLAINTIFF’S WORK, THEREFORE NO LIABILITY UNDER LABOR LAW 200(1) AS WELL.

The Second Department determined defendant (Nickel) was entitled to summary judgment dismissing the Labor Law 200(1), 246(1) and 240(1) causes of action. Plaintiff was injured when he fell of a ladder while attempting to fix an air conditioner which had stopped running. Plaintiff was not engaged in a protected activity under Labor Law 240(1) or 246(1). The Labor Law 200(1) cause of action was properly dismissed because defendant did not control the manner of plaintiff’s work:

Nickel submitted evidence sufficient to establish, prima facie, that the plaintiff was not engaged in an enumerated activity protected under Labor Law § 240(1) at the time of his accident. Furthermore, Nickel submitted evidence sufficient to establish, prima facie, that the plaintiff’s accident did not involve construction, demolition, or excavation and, accordingly, that Labor Law § 241(6) does not apply. In opposition, the plaintiff failed to raise a triable issue of fact.

Supreme Court properly granted that branch of Nickel’s motion which was for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it, albeit for a different reason. Nickel established, prima facie, that the ladder was not defective, and the plaintiff conceded that fact. Thus, the potential liability of Nickel, contrary to the Supreme Court’s finding, was not based on its actual or constructive notice of any dangerous or defective condition of the ladder … . Instead, the plaintiff allegedly was injured as a result of the manner in which he performed his work. Accordingly, recovery against Nickel under Labor Law § 200 or under the common law may only be found if Nickel had the authority to supervise or control the performance of the work … . Nickel established, prima facie, that it did not have authority to exercise supervision or control over the means and methods of the plaintiff’s work. In opposition, the plaintiff failed to raise a triable issue of fact … . Mammone v T.G. Nickel & Assoc., LLC, 2016 NY Slip Op 07300, 2nd Dept 11-9-16

 

LABOR LAW-CONSTRUCTION LAW (REPAIR OF AN AIR CONDITIONER WAS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240(1) OR 246(1), LADDER WAS NOT DEFECTIVE AND DEFENDANT DID NOT CONTROL PLAINTIFF’S WORK, THEREFORE NO LIABILITY UNDER LABOR LAW 200(1) AS WELL)/LADDERS  (REPAIR OF AN AIR CONDITIONER WAS NOT A PROTECTED ACTIVITY UNDER LABOR LAW 240(1) OR 246(1), LADDER WAS NOT DEFECTIVE AND DEFENDANT DID NOT CONTROL PLAINTIFF’S WORK, THEREFORE NO LIABILITY UNDER LABOR LAW 200(1) AS WELL)

REPLACING A SPEAKER IN CONJUNCTION WITH INSTALLING PANELING CONSTITUTED ALTERING, ALLEGATION THE LADDER SWAYED SUFFICIENT TO DEMONSTRATE THE FAILURE TO SECURE THE LADDER CAUSED THE FALL.

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment on his Labor Law 240(10 cause of action should have been granted. Plaintiff had been hired to install wood paneling. Speakers were removed from wall to install the paneling. Plaintiff was standing on an A-frame ladder, replacing one of the speakers when the ladder swayed and he fell. The Second Department held that plaintiff was engaged in “altering,” a covered activity, and the allegation that the ladder swayed was sufficient to link the fall to a failure of a safety device (failure to secure the ladder):

Although the defendant contends that the act of rehanging a speaker does not constitute the “altering” of a building or structure, “[t]he intent of [Labor Law § 240(1)] was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts” … . The plaintiff was injured while rehanging a speaker that he and his coworkers had removed to enable them to install the wood paneling and, therefore, we conclude that the plaintiff was injured while performing work that was “ancillary to” a covered activity, entitling him to the protections afforded by Labor Law § 240(1) … . “To myopically focus on a job title or the plaintiff’s activities at the moment of the injury would be to ignore the totality of the circumstances in which the plaintiff and his employer were engaged in contravention of the spirit of the statute which requires a liberal construction in order to accomplish its purpose of protecting workers” … .

Further, the plaintiff established, prima facie, the existence of a violation of Labor Law § 240(1) that was a substantial factor in causing his 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 proof established that the ladder from which he fell was inadequately secured to provide him with proper protection, and that the failure to secure the ladder was a proximate cause of his injuries … . Goodwin v Dix Hills Jewish Ctr., 2016 NY Slip Op 07293, 2nd Dept 11-9-16

LABOR LAW-CONSTRUCTION LAW (REPLACING A SPEAKER IN CONJUNCTION WITH INSTALLING PANELING CONSTITUTED ALTERING, ALLEGATION THE LADDER SWAYED SUFFICIENT TO DEMONSTRATE THE FAILURE TO SECURE THE LADDER CAUSED THE FALL)/ALTERING (LABOR LAW 240(1), REPLACING A SPEAKER IN CONJUNCTION WITH INSTALLING PANELLING CONSTITUTED ALTERING, ALLEGATION THE LADDER SWAYED SUFFICIENT TO DEMONSTRATE THE FAILURE TO SECURE THE LADDER CAUSED THE FALL)/LADDERS (LABOR LAW 240(1), REPLACING A SPEAKER IN CONJUNCTION WITH INSTALLING PANELLING CONSTITUTED ALTERING, ALLEGATION THE LADDER SWAYED SUFFICIENT TO DEMONSTRATE THE FAILURE TO SECURE THE LADDER CAUSED THE FALL)

ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED.

The First Department determined plaintiff’s Labor Law 240(1) cause of action, which was based upon injury incurred in an elevator, was properly dismissed. Under the circumstances (not explained in the decision) the elevator could not be considered a safety device. Plaintiff’s Labor Law 241(6) cause of action, alleging debris as a slipping hazard, should not have been dismissed:

Dismissal was properly granted with respect to plaintiff’s Labor Law § 240(1) cause of action in that plaintiff alleged that he was injured while riding in one of the building’s elevators. In this case, the passenger elevator was not a safety device for protecting a construction worker from a risk posed by elevation as contemplated by Labor Law § 240(1) … .

The court erred, however, in dismissing that portion of plaintiff’s Labor Law § 241(6) claim to the extent the claim was predicated on violations of Industrial Code … . While there were no facts alleged to support a claim that plaintiff was injured as the result of a slipping hazard, plaintiff’s complaint, as supplemented by his affidavit in opposition to defendant’s motion, sufficiently alleged that debris was one of the causes of his fall … . Smith v Extell W. 45th St. LLC, 2016 NY Slip Op 07089, 1st Dept 10-27-16

 

LABOR LAW-CONSTRUCTION LAW (ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED)/ELEVATORS (LABOR LAW, ELEVATOR NOT A SAFETY DEVICE, LABOR LAW 240(1) CAUSE OF ACTION PROPERLY DISMISSED)

STANDING ON THE TOP STEP OF AN A FRAME LADDER WAS NOT THE SOLE PROXIMATE CAUSE OF THE PLAINTIFF’S FALL; SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED.

he First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was injured when he fell descending from the top step of a six-foot A frame ladder. Plaintiff used the six-foot ladder because debris prevented the use of an eight-foot ladder (the eight-foot ladder could not opened due to the debris). Standing on the top step was not the sole proximate cause of the accident:

Denial of summary judgment on plaintiff’s claim pursuant to Labor Law § 240(1) was in error where plaintiff electrician was injured when he fell from an A-frame ladder as he was attempting to descend it. Plaintiff’s use of a six-foot ladder that required him to stand on the top step did not make him the sole proximate cause of his accident where the eight-foot ladder could not be opened in the space due to the presence of construction debris … . Defendants’ reliance on the affidavit of the high-rise superintendent is misplaced. Although the superintendent speculated that there was sufficient space to open an eight-foot ladder, this was inconsistent with his prior deposition testimony and was thus calculated to create a feigned issue of fact … .

Nor was plaintiff a recalcitrant worker … . While the site safety manager who worked for a subcontractor of defendants testified that she told plaintiff that he should not work in the room because it was unsafe due to all the debris, she explicitly denied that she directed plaintiff to stop work, explaining that she had no such authority. Saavedra v 89 Park Ave. LLC, 2016 NY Slip Op 06974, 1st Dept 10-25-16

 

LABOR LAW-CONSTRUCTION LAW (STANDING ON THE TOP STEP OF AN A FRAME LADDER WAS NOT THE SOLE PROXIMATE CAUSE OF THE PLAINTIFF’S FALL; SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)/LADDERS (STANDING ON THE TOP STEP OF AN A FRAME LADDER WAS NOT THE SOLE PROXIMATE CAUSE OF THE PLAINTIFF’S FALL; SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION SHOULD HAVE BEEN GRANTED)

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