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QUESTION OF FACT WHETHER STACKED SCAFFOLDING, WHICH WAS ON THE SAME LEVEL AS PLAINTIFF, CONSTITUTED A “PHYSICALLY SIGNIFICANT ELEVATION DIFFERENTIAL,” SUMMARY JUDGMENT DISMISSING PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED.

The Third Department, reversing Supreme Court, determined defendants’ motions for summary judgment dismissing plaintiff’s Labor Law 240(1) cause of action should not have been granted. Plaintiff was severely injured when a row of stacked scaffolding frames fell forward like “dominos.” Whether Labor 240(1) applies depends on whether the scaffolding, which was on the same level as plaintiff, presented a risk related to a significant elevation differential:

… [W]e are unable to glean from the present record whether plaintiff’s injury arose from the requisite “physically significant elevation differential” … . In determining whether an elevation differential is physically significant or de minimis, we must consider not only the height differential itself, but also “the weight of the [falling] object and the amount of force it was capable of generating, even over the course of a relatively short descent” … . Critically absent from the record is any indication as to plaintiff’s height or any other evidence shedding light on the height differential between plaintiff and the stacked frames at the time they fell. Further, issues of fact remain with regard to such other relevant factors as the number of scaffolds stacked in the pile that collapsed, the weight of each scaffold and the manner in which the scaffold(s) struck plaintiff. Given these unresolved factual questions, summary judgment on plaintiff’s Labor Law § 240 (1) is not appropriate … . Wright v Ellsworth Partners, LLC, 2016 NY Slip Op 06927, 3rd Dept 10-20-16

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER STACKED SCAFFOLDING, WHICH WAS ON THE SAME LEVEL AS PLAINTIFF, CONSTITUTED A “PHYSICALLY SIGNIFICANT ELEVATION DIFFERENTIAL,” SUMMARY JUDGMENT DISMISSING PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED)/ELEVATION DIFFERENTIAL (LABOR LAW 240(1), QUESTION OF FACT WHETHER STACKED SCAFFOLDING, WHICH WAS ON THE SAME LEVEL AS PLAINTIFF, CONSTITUTED A “PHYSICALLY SIGNIFICANT ELEVATION DIFFERENTIAL,” SUMMARY JUDGMENT DISMISSING PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED)

ACCIDENT CAUSED BY HIGH PRESSURE, NOT GRAVITY; INJURY NOT COVERED BY LABOR LAW 240(1).

The First Department, reversing Supreme Court, determined plaintiff’s injury was not the result of the force of gravity and was therefore not covered under Labor Law 240(1):

Plaintiff … was struck by a pipe while it was being flushed clean with a highly pressurized mixture of air, water, and a rubber “rabbit” device. The movement of this mixture through the pipe failed to bring the mechanism of plaintiff’s injury within the ambit of section 240(1) because it did not involve “the direct consequence of the application of the force of gravity to an object” … . The mixture in the pipe did not move through the exercise of the force of gravity, but was rather intentionally propelled through the pipe through the use of high pressure … . Joseph v City of New York, 2016 NY Slip Op 06649, 1st Dept 10-11-16

LABOR LAW-CONSTRUCTION LAW (ACCIDENT CAUSED BY HIGH PRESSURE, NOT GRAVITY; INJURY NOT COVERED BY LABOR LAW 240(1))/GRAVITY (LABOR LAW, ACCIDENT CAUSED BY HIGH PRESSURE, NOT GRAVITY; INJURY NOT COVERED BY LABOR LAW 240(1))

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK.

The First Department, over an extensive dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action stemming from a fall of 13 to 14 feet from the back of a flatbed truck. Plaintiff was standing on top of steel beams, securing the beams with a cable (to be hoisted by crane off the truck), when he fell. The dissent argued plaintiff did not demonstrate he could have been provided with any kind of safety equipment which would have prevented the fall. Plaintiff was wearing a safety harness, but the harness was not tied off:

The motion court correctly determined that defendants, other than Metropolitan Steel, were liable under Labor Law § 240(1) for plaintiff’s injuries because they failed to provide plaintiff with an adequate safety device to prevent his fall from steel beams placed on a flatbed trailer. … [D]efendants’ contention that the accident is outside the scope of Labor Law § 240(1) is without merit, because plaintiff’s fall from a height of 13 or 14 feet above the ground “constitutes precisely the type of elevation-related risk envisioned by the statute” … . The fact that plaintiff did not ask for a specific safety device prior to the accident is not dispositive and is not a prerequisite for recovery under Labor Law § 240(1) … . Plaintiff has met his burden of showing that his fall resulted from the lack of a safety device and is, therefore, entitled to summary judgment on liability (see Phillip v 525 E. 80th St. Condominium, 93 AD3d 578, 579 [1st Dept 2012] [the plaintiff entitled to summary judgment where evidence showed that the plaintiff, who fell while unloading scaffolding material from the flatbed of a truck, was provided with a safety harness, but there was no place where the harness could be secured]). Myiow v City of New York, 2016 NY Slip Op 06461, 1st Dept 10-4-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK)/FLATBED TRUCK (LABOR LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK)

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PROPERTY OWNER’S [EMPLOYER’S] COMMON LAW DUTY TO PROVIDE SAFE PLACE TO WORK NOT TRIGGERED BY INJURY WHEN DRAWING UP AN ESTIMATE.

The Second Department, reversing Supreme Court, determined defendant property-owner was not entitled to summary judgment. Plaintiff was on the property to provide an estimate of the cost of repair of defendant’s porch when the porch collapsed. Defendant argued she could not be liable because the injury occurred when plaintiff was doing work he was hired to do. However, the plaintiff had not been hired to repair the porch:

Employers have a common-law duty to provide their employees with a safe place to work … . The duty, however, does not extend to hazards that are part of, or inherent in, the very work the employee is to perform or defects the employee is hired to repair … . Here, the defendant failed to establish her prima facie entitlement to judgment as a matter of law, as the evidence submitted in support of her motion showed that the plaintiff merely went to the premises to prepare an estimate to repair the back porch. The plaintiff had not been hired to repair the back porch and he was not engaged in any repair work when the incident allegedly occurred… . Arcabascio v Bentivegna, 2016 NY Slip Op 06187, 2nd Dept 9-28-16

NEGLIGENCE (PROPERTY OWNER’S [EMPLOYER’S] COMMON LAW DUTY TO PROVIDE SAFE PLACE TO WORK NOT TRIGGERED BY INJURY WHEN PROVIDING AN ESTIMATE)/LABOR-CONSTRUCTION LAW (PROPERTY OWNER’S [EMPLOYER’S] COMMON LAW DUTY TO PROVIDE SAFE PLACE TO WORK NOT TRIGGERED BY INJURY WHEN PROVIDING AN ESTIMATE)/EMPLOYMENT LAW (PROPERTY OWNER’S [EMPLOYER’S] COMMON LAW DUTY TO PROVIDE SAFE PLACE TO WORK NOT TRIGGERED BY INJURY WHEN PROVIDING AN ESTIMATE)

FALLING SHEETROCK DID NOT SUPPORT A LABOR LAW 240(1) CAUSE OF ACTION.

The Second Department determined defendants’ motion for summary judgment on the Labor Law 240(1) cause of action, alleging injury from a falling piece of sheetrock, was properly granted. The sheetrock in question was stored against a wall and was not being hoisted at the time of the incident. [The extensive decision demonstrates the complexity of Labor Law actions as it addresses Labor Law 241(6) and Labor Law 200 causes of action, indemnification issues and the liability of agents and general contractors.] With respect to the Labor Law 240(1) cause of action, the court wrote:

“In order to prevail on summary judgment in a section 240(1) falling object’ case, the injured worker must demonstrate the existence of a hazard contemplated under that statute and the failure to use, or the inadequacy of, a safety device of the kind enumerated therein'” … . “Essentially, the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking” … . “[F]or section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … .

However, Labor Law § 240(1) “does not apply in situations in which a hoisting or securing device of the type enumerated in the statute would not be necessary or expected” … . Here, the sheetrock, which was being stored against a wall, was not a material being hoisted or a load that required securing for the purposes of the undertaking at the time it fell … , nor was it expected, under the circumstances of this case, that the sheetrock would require securing for the purposes of the undertaking at the time it fell … . Seales v Trident Structural Corp., 2016 NY Slip Op 06204, 2nd Dept 9-28-16

 

LABOR LAW-CONSTRUCTION LAW (FALLING SHEETROCK DID NOT SUPPORT A LABOR LAW 240(1) CAUSE OF ACTION)/FALLING OBJECTIONS (LABOR LAW-CONSTRUCTION LAW, FALLING SHEETROCK DID NOT SUPPORT A LABOR LAW 240(1) CAUSE OF ACTION)

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PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT.

The First Department, with a two-justice concurring memorandum, determined conflicting testimony raised questions of fact about whether a safety harness was available and whether the scaffold was defective. Plaintiff was not wearing a harness when he attempted to move from the roof to a scaffold and fell. With respect to the scaffold, the court noted that plaintiff’s allegedly inconsistent accounts of the cause of the fall raised a question of fact:

According to plaintiff, as he attempted to swing down from the roof to the scaffold, a wire attaching the scaffold to the building snapped, causing the scaffold to swing away from the wall and resulting in plaintiff’s fall to the ground below. The foreman, however, testified that, in conversation after the accident, plaintiff had admitted to him that he fell because his foot had slipped as he stepped onto the scaffold from the roof, without mentioning any movement of the scaffold. These two versions of how the accident happened, each given by plaintiff, the sole witness to the incident, are inconsistent with each other and give rise to an issue of fact as to whether plaintiff’s fall was caused by a failure of a safety device within the purview of § 240(1). As this Court recently noted, “[W]here a plaintiff is the sole witness to an accident, an issue of fact may exist where he or she provides inconsistent accounts of the accident” … . Albino v 221-223 W. 82 Owners Corp., 2016 NY Slip Op 05953, 1st Dept 9-8-16

LABOR LAW (PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT)/EVIDENCE (LABOR LAW, PLAINTIFF’S ALLEGEDLY INCONSISTENT ACCOUNTS OF THE CAUSE OF HIS FALL CREATED A QUESTION OF FACT)

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ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED.

The Second Department determined summary judgment in this Labor Law 240(1) and 241(6) action should not have been awarded to plaintiff. Although plaintiff had made out a prima facie case against defendant YAM, the motion was premature in that plaintiff had not yet been deposed:

… [T]he plaintiff made a prima facie showing that YAM failed to provide him with adequate safety devices, as required by Labor Law § 240(1), and that this violation of the statute was a proximate cause of the accident … . The plaintiff also made a prima facie showing that he was injured while he was engaged in an activity covered under Labor Law § 241(6), that there was a violation of an applicable provision of the Industrial Code, and that the violation was a proximate cause of the accident … .

Nonetheless, the plaintiff’s motion for summary judgment on the issue of liability on the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) insofar as asserted against YAM was premature since there has been almost no discovery in the case and the plaintiff has not been deposed. In the absence of such discovery, YAM’s ability to defend is impaired, since it is limited to the plaintiff’s own unchallenged account of the accident, set forth in the affidavit he submitted in support of his motion for summary judgment, and YAM has not had an opportunity to explore potential defenses … . Churaman v C&B Elec., Plumbing & Heating, Inc., 2016 NY Slip Op 05703, 2nd Dept 8-3-16

CIVIL PROCEDURE (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)/SUMMARY JUDGMENT (LABOR LAW-CONSTRUCTION LAW, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)/LABOR LAW-CONSTRUCTION LAW (SUMMARY JUDGMENT, ALTHOUGH PLAINTIFF MADE OUT A PRIMA FACIE CASE ON HIS LABOR LAW CAUSES OF ACTION, THE MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DISMISSED AS PREMATURE; PLAINTIFF NOT YET DEPOSED)

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CONDOMINIUM BOARD OF MANAGERS, NOT INDIVIDUAL CONDOMINIUM OWNERS, IS LIABLE FOR INJURY IN A COMMON AREA.

The First Department, in a full-fledged opinion by Justice Friedman, over a full-fledged dissenting opinion by Justice Gische, determined the board of managers of a condominium was liable under the Labor Law for plaintiff’s elevation-related injury in a common area (the boiler room), not the sponsor which still owned several unsold condominium units:

While defendant 41 West 72 LLC acquired the building in question by a deed recorded in January 2001, several months later, in August 2001, 41 West 72 LLC made the building subject to the Condominium Act (Real Property Law, article 9-B) by executing and filing a declaration of condominium pursuant to Real Property Law § 339-f … . The declaration defines the common elements of the condominium (Real Property Law § 339-e[2]) to include the building’s boiler room. As a common element of the condominium, the boiler room was, at the time of plaintiff’s accident, owned collectively by all of the owners of the building’s 130 units … . However, the conversion of the building to a condominium placed its common elements “solely under the control of the [condominium’s] board of managers” pursuant to the Condominium Act, which “recogni[zes] that the board exercises exclusive control over the common elements” … . Jerdonek v 41 W. 72 LLC, 2016 NY Slip Op 05666, 1st Dept 7-28-16

LABOR LAW (CONDOMINIUM BOARD OF MANAGERS, NOT INDIVIDUAL CONDOMINIUM OWNERS, ARE LIABLE FOR INJURY IN A COMMON AREA)/REAL PROPERTY LAW (LABOR LAW, CONDOMINIUMS, CONDOMINIUM BOARD OF MANAGERS, NOT INDIVIDUAL CONDOMINIUM OWNERS, ARE LIABLE FOR INJURY IN A COMMON AREA)/CONDOMINIUMS (LABOR LAW, CONDOMINIUM BOARD OF MANAGERS, NOT INDIVIDUAL CONDOMINIUM OWNERS, ARE LIABLE FOR INJURY IN A COMMON AREA)/BOARD OF MANAGERS (CONDOMINIUMS, LABOR LAW, CONDOMINIUM BOARD OF MANAGERS, NOT INDIVIDUAL CONDOMINIUM OWNERS, ARE LIABLE FOR INJURY IN A COMMON AREA)

SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED.

The Second Department determined a worksite “safety consultant” (PSS) did not exercise sufficient supervisory control to be held liable under the Labor Law. Plaintiff was injured when he fell through a plywood covered hole in a ramp. The decision has detailed recitations of the black letter law requirements for Labor law 240(1), 241 (6) and 200 causes of action:

PSS submitted evidence demonstrating that its role at the work site was only one of general supervision, and that it did not have the authority to control the work performed or the safety precautions taken by the general contractor and the plaintiff’s employer, which is insufficient to impose liability on a safety consultant under 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 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'” … . Where a plaintiff’s injuries arise not from the manner in which the work was performed, but from a dangerous condition on the premises, a contractor may be liable under Labor Law § 200 ” only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it'” … . Moreover, an entity is not deemed to be an agent of an owner or contractor for purposes of Labor Law § 200 if it “lacked sufficient control over the premises and the activity that brought about the injury” … . Marquez v L & M Dev. Partners, Inc., 2016 NY Slip Op 05631, 2nnd Dept 7-27-16

 

LABOR LAW (SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED)/SAFETY CONSULTANT (LABOR LAW, (SAFETY CONSULTANT DID NOT EXERCISE SUFFICIENT CONTROL OVER WORKSITE TO BE LIABLE UNDER LABOR LAW 240(1), 241(6) OR 200–CRITERIA EXPLAINED)

QUESTION OF FACT WHETHER ACCIDENT WAS GRAVITY-RELATED, MOTORIZED WHEELBARROW SLID DOWN HILL.

The First Department determined there was a question of fact whether the accident was related to a gravity-related risk or merely part of the usual dangers of construction work. Plaintiff was operating a motorized wheelbarrow and was stopped near the top of a hill when it slid down the hill:

Issues of fact exist here as to whether plaintiff’s accident was the result of a gravity-related risk or part of the usual and ordinary dangers of the work site …  . Hence partial summary judgment on plaintiff’s Labor Law § 240(1) claim should have been denied, and summary dismissal of plaintiff’s Labor Law § 200 and common law negligence claims was properly denied. Ankers v Horizon Group, LLC, 2016 NY Slip Op 05342, 1st Dept 7-5-16

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER ACCIDENT WAS GRAVITY-RELATED, MOTORIZED WHEELBARROW SLID DOWN HILL)

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