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RENOVATION OF PROPERTY FOR COMMERCIAL PURPOSES DISQUALIFIES HOMEOWNER FROM HOMEOWNERS’ EXEMPTION FROM LIABILITY UNDER LABOR LAW 240(1) AND 241(6);QUESTION OF FACT ABOUT HOMEOWNER’S INTENTION AT TIME OF INJURY.

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant was entitled to the homeowner’s exemption from liability under Labor Law 240(1) and 241(6). Homeowners who renovate property for commercial purposes cannot assert the exemption. Here there was a question of fact about the homeowner’s intention at the time of the injury:

Although the Labor Law generally imposes liability for worker safety on property owners and contractors, it exempts from liability “owners of one and two-family dwellings who contract for but do not direct or control the work” … . The exemption “was not intended to insulate from liability owners who use their one- or two-family houses purely for commercial purposes” … .

“[R]enovating a residence for resale or rental plainly qualifies as work being performed for a commercial purpose” … . However, where a one- or two-family property serves both residential and commercial purposes, “[a] determination as to whether the exemption applies in a particular case turns on the nature of the site and the purpose of the work being performed, and must be based on the owner’s intentions at the time of the injury” … . Batzin v Ferrone, 2016 NY Slip Op 05108, 2nd Dept 6-29-16

 

LABOR-CONSTRUCTION LAW (RENOVATION OF PROPERTY FOR COMMERCIAL PURPOSES DISQUALIFIES HOMEOWNER FROM HOMEOWNERS’ EXEMPTION FROM LIABILITY UNDER LABOR LAW 240(1) AND 241(6); QUESTION OF FACT ABOUT HOMEOWNER’S INTENTION AT TIME OF INJURY)/HOMEOWNERS’ EXEMPTION (LABOR LAW, RENOVATION OF PROPERTY FOR COMMERCIAL PURPOSES DISQUALIFIES HOMEOWNER FROM HOMEOWNERS’ EXEMPTION FROM LIABILITY UNDER LABOR LAW 240(1) AND 241(6); QUESTION OF FACT ABOUT HOMEOWNER’S INTENTION AT TIME OF INJURY)

INVESTIGATING A MALFUNCTION CONSTITUTES COVERED REPAIR UNDER LABOR LAW 240(1).

The Fourth Department, over a two-justice dissent, determined plaintiff was covered by Labor Law 240(1) when he was diagnosing a problem on a cell tower, which constituted “repair” under the statute. The Fourth Department further concluded the defendants raised a question of fact about whether plaintiff had been provided with sufficient safety equipment (the dissent argued defendants had not raised a question of fact on that issue):

Here, plaintiff testified that he never performed preventive maintenance on the towers, and that he and his coworkers were dispatched to a tower only when something was in need of repair … . Indeed, plaintiff's submissions establish that an item on the tower was malfunctioning prior to commencement of the work, and that plaintiff was injured after climbing approximately 180 feet to conduct an investigation into the cause of the alarm and to remedy the malfunction … . Where, as here, ” a person is investigating a malfunction, . . . efforts in furtherance of that investigation are protected activities under Labor Law § 240 (1)' ” … . Cullen v AT&T, Inc., 2016 NY Slip Op 04503, 4th Dept 6-10-16

LABOR LAW-CONSTRUCTION LAW (INVESTIGATING A MALFUNCTION CONSTITUTES COVERED REPAIR UNDER LABOR LAW 240(1))/REPAIR (LABOR LAW, INVESTIGATING A MALFUNCTION CONSTITUTES COVERED REPAIR UNDER LABOR LAW 240(1))

BUILDING OWNER LIABLE UNDER LABOR LAW 240(1) FOR INJURY CAUSED BY FALLING ELEVATOR.

The First Department determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff, McCrea, was repairing an elevator when it fell on him. The court explained the relevant law, including the criteria for demonstrating an injured worker's actions were the sole proximate cause of the injury:

The evidence here establishes that at the time of the accident, McCrea was engaged in “repair” work because the elevator's safety shoes were not operating properly, and the condition was an isolated event, unrelated to normal wear and tear … . In addition, the elevator was a “falling object” within the meaning of the Labor Law, even though it was not actually being hoisted or secured at the time of the accident, because it required securing for the purpose of McCrea's repair work … .

As plaintiff was engaged in activity protected by Labor Law § 240(1) at the time of the incident, Arnlie, as owner of the building, is subject to absolute liability for injuries which resulted from its failure to provide plaintiff with proper safety devices …, without regard to the comparative fault of plaintiff … . Where the worker is the sole proximate cause of the injury, however, the premises owner will not be liable … . “[T]o raise a triable issue of fact as to whether a plaintiff was the sole proximate cause of an accident, the defendant must produce evidence that adequate safety devices were available, that the plaintiff knew that they were available and was expected to use them, and that the plaintiff unreasonably chose not to do so, causing the injury sustained” … .

Here, there is no indication that plaintiff refused or misused available safety equipment. McCrea v Arnlie Realty Co. LLC, 2016 NY Slip Op 04330, 1st Dept 6-7-16

LABOR LAW-CONSTRUCTION LAW (BUILDING OWNER LIABLE UNDER LABOR LAW 240(1) FOR INJURY CAUSED BY FALLING ELEVATOR)/ELEVATORS (BUILDING OWNER LIABLE UNDER LABOR LAW 240(1) FOR INJURY CAUSED BY FALLING ELEVATOR)

HOMEOWNER’S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME.

The First Department, reversing Supreme Court, determined the homeowner's exemption from liability under the Labor Law for one- and two-family homes applied, despite evidence three families lived in the home:

The applicability of the homeowner exemption is determined by a “site and purpose” test … , which “hinges upon the site and the purpose of the work” and “must be employed on the basis of the homeowners' intentions at the time of the injury” … . Here, the evidence established that, at the time of the accident, defendants' house was a two-family residential home with a basement apartment, where a family friend lived, and three upper floors, which defendants shared with an adult child and two grandchildren. Defendants did not receive any rental income. That three families, two of which are related, lived in the home is insufficient to raise an issue of fact as to whether the home was a three-family dwelling … . Del Carnen Diaz v Bocheciamp, 2016 NY Slip Op 04305, 1st Dept 6-2-16

LABOR LAW-CONSTRUCTION LAW (HOMEOWNER'S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME)/HOMEOWNER'S EXEMPTION (LABOR LAW, HOMEOWNER'S EXEMPTION FROM LABOR LAW LIABILITY APPLIED, DESPITE PRESENCE OF THREE FAMILIES IN THE HOME)

ABSENCE OF SAFETY RAIL ON SCAFFOLDING ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION.

The Second Department determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff fell from scaffolding after suffering an electric shock. There was no safety rail on the scaffolding:

Labor Law § 240(1) is to be “interpreted liberally to accomplish its purpose” … . 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 … . Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that he was injured when he fell from a scaffold that lacked a safety railing, and that he was not provided with a safety device to prevent him from falling … . Viera v WFJ Realty Corp., 2016 NY Slip Op 04202, 2nd Dept 6-1-16

 

LABOR LAW-CONSTRUCTION LAW (ABSENCE OF SAFETY RAIL ON SCAFFOLDING ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION)/SCAFFOLDING (ABSENCE OF SAFETY RAIL ON SCAFFOLDING ENTITLED PLAINTIFF TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION)

ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST.

The First Department, in a full-fledged opinion by Justice Saxe, determined that the state, although the title owner of the property (Pier 40) where plaintiff was injured by a falling beam, was not subject to absolute liability under the Labor Law. Under the Hudson River Park Act, the day to day operation and management of Pier 40 was transferred to a public benefit corporation, the Hudson River Park Trust. The court was careful to note that leasing property does not relieve the owner of Labor Law liability. However, the terms of the Hudson River Park Act indicated the legislature's intent transfer Labor Law liability to the trust:

Section 5 of the Hudson River Park Act (Uncons Laws § 1645[1]), gives the Trust total “authority over the planning, design, construction, operation and maintenance of” the park; the Act also gives the Trust the right to receive rents and other revenues generated from the park (see §§ 1646[g], 1647[10]), although ownership and title would remain with the State (see § 1647[2], [3]). Also, notably, the Act directs that the Trust has the capacity to sue and be sued (§ 1647[1][d][v]), and requires that all tort actions commenced against the Trust comply with the notice of claim requirement of General Municipal Law § 50-e (§ 1651). Most importantly, the Act expressly states that “[u]pon the coming into existence of the trust, the trust shall succeed to all contracts, leases, licenses and other legal obligations respecting the park to which its predecessors are a party at or after the effective date of this act” (§ 1645 [1] [emphasis added]). The legislature's use of the term “succeed to” and its reference to all “other legal obligations” of its predecessors clearly reflects an intent to have the Trust take over all legal liability arising out of ownership of the Park's premises. Costa v State of New York, 2016 NY Slip Op 04119, 1st Dept 5-26-16

LABOR LAW-CONSTRUCTION LAW (ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST)/HUDSON RIVER PARK TRUST (LABOR LAW, ALTHOUGH THE STATE IS THE TITLE OWNER OF PIER 40 ON THE HUDSON RIVER, THE HUDSON RIVER PARK ACT TRANSFERRED LABOR LAW ABSOLUTE LIABILITY TO THE HUDSON RIVER PARK TRUST)

PLAINTIFF DID NOT KNOW SOURCE OF FALLING WOOD WHICH STRUCK HIM, THEREFORE PLAINTIFF COULD NOT DEMONSTRATE, AS MATTER OF LAW, A VIOLATION OF LABOR LAW 240(1).

The Second Department determined plaintiff's motion for summary judgment on a Labor Law 240(1) cause of action was properly denied. Plaintiff was struck by a falling piece of wood, but did not know what caused the wood to fall:

To prevail on a motion for summary judgment in a section 240(1) “falling object” case, 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 … . In addition, the plaintiff “must show that the object fell . . . because of the absence or inadequacy of a safety device of the kind enumerated in the statute” … .

… The evidence submitted by the plaintiff was insufficient to establish that the wood fell because of the absence or inadequacy of a safety device. The plaintiff's mere belief that the wood that struck him was a part of the hoist mechanism is insufficient to establish that it was a component of the safety device itself … . Moreover, under the circumstances, including that the plaintiff did not see where the wood fell from, the plaintiff did not establish, prima facie, that his injuries were proximately caused by the absence or inadequacy of a safety device or other violation of the statute … . Pazmino v 41-50 78th St. Corp., 2016 NY Slip Op 04032, 2nd Dept 5-25-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF DID NOT KNOW SOURCE OF FALLING WOOD WHICH STRUCK HIM, THEREFORE PLAINTIFF COULD NOT DEMONSTRATE, AS MATTER OF LAW, A VIOLATION OF LABOR LAW 240(1))/FALLING OBJECTS (LABOR LAW, PLAINTIFF DID NOT KNOW SOURCE OF FALLING WOOD WHICH STRUCK HIM, THEREFORE PLAINTIFF COULD NOT DEMONSTRATE, AS MATTER OF LAW, A VIOLATION OF LABOR LAW 240(1))

PLAINTIFF’S ACT OF CLIMBING A FENCE SHOULD NOT HAVE BEEN DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT NEGLIGENT FOR LOCKING PLAINTIFF INSIDE WORK SITE.

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded to defendant on a Labor Law 200 cause of action alleging a dangerous condition. Plaintiff was locked inside the work site (a stadium) and was injured when climbing over a six-foot fence. Supreme Court erred when it determined, as a matter of law, that plaintiff's act of climbing the fence was the sole proximate cause of the injury:

“Defendants are liable for all normal and foreseeable consequences of their acts,” and the plaintiffs “need not demonstrate that the precise manner in which the accident happened or the injuries occurred was foreseeable” … . “An intervening act constitutes a superseding cause sufficient to relieve a defendant of liability if it is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct'” … . However, when the intervening act is a natural and foreseeable consequence of a circumstance created by the defendant, the causal nexus is not severed and liability will subsist … . Whether an act is foreseeable is generally for the trier of fact … . Summary judgment is appropriate “where only one conclusion may be drawn from the established facts” … . Here, viewing the evidence in the light most favorable to the plaintiffs … we find that there is a triable issue of fact as to whether [plaintiff's] act in scaling the fence was a natural and foreseeable response to a condition allegedly created by the defendant's negligence … . Niewojt v Nikko Constr. Corp., 2016 NY Slip Op 04030, 2nd Dept 5-25-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF'S ACT OF CLIMBING A FENCE SHOULD NOT HAVE BEEN DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT NEGLIGENT FOR LOCKING PLAINTIFF INSIDE WORK SITE)/NEGLIGENCE (LABOR LAW 200, PLAINTIFF'S ACT OF CLIMBING A FENCE SHOULD NOT HAVE BEEN DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY AS A MATTER OF LAW, QUESTION OF FACT WHETHER DEFENDANT NEGLIGENT FOR LOCKING PLAINTIFF INSIDE WORK SITE)

FIXING A LEAKY ROOF NOT ROUTINE MAINTENANCE, PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION PROPERLY SURVIVED MOTION TO DISMISS.

The First Department determined defendant's motion to dismiss plaintiff's Labor Law 240(1) cause of action was properly denied. Plaintiff climbed up a permanent ladder to fix a roof leak. The ladder was wet with rain, shaky and too close to the wall. Plaintiff fell when he attempted to come back down the ladder from the roof:

… [D]efendant [is not] entitled to dismissal of the Labor Law § 240(1) claim. Plaintiff was engaged in repairing the roof, an activity to which Labor Law § 240(1) applies, and not merely in routine maintenance … . Moreover, the permanently affixed ladder that provided the sole access to plaintiff's elevated work site was a safety device within the meaning of Labor Law § 240(1) … . In view of plaintiff's testimony that the ladder shook and was wet and was too close to the wall to allow room for his feet on the rungs, defendant failed to demonstrate as a matter of law that plaintiff was provided with proper protection. Kolenovic v 56th Realty, LLC, 2016 NY Slip Op 04005, 1st Dept 5-24-16

LABOR LAW-CONSTRUCTION LAW (FIXING A LEAKY ROOF NOT ROUTINE MAINTENANCE, PLAINTIFF'S LABOR LAW 240(1) CAUSE OF ACTION PROPERLY SURVIVED MOTION TO DISMISS)

REMOVING A CRATE FROM A FLATBED TRUCK WAS AN ELEVATION-RELATED RISK COVERED BY LABOR LAW 240(1).

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 attempting to maneuver a 1500-pound crate to a sling for removal from a flatbed truck when it fell over on him:

… [ P]reparing a six-foot-tall crate weighing at least 1,500 pounds for hoisting posed an elevation-related risk for plaintiff within the meaning of Labor Law § 240(1) … , and the crate was “an object that required securing for the purposes of the undertaking” … .

Further, there is unrebutted evidence that various devices, including wooden blocks for bracing, would have stabilized the crate while it was being maneuvered into a position to have slings placed on it for hoisting by the crane. Grant v Solomon R. Guggenheim Museum, 2016 NY Slip Op 04003, 1st Dept 5-24-16

LABOR-CONSTRUCTION LAW (REMOVING A CRATE FROM A FLATBED TRUCK WAS AN ELEVATION-RELATED RISK COVERED BY LABOR LAW 240(1))

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