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THE FLOOR OF THE ELEVATOR WHERE PLAINTIFF’S ACCIDENT OCCURRED IS NOT A “PASSAGEWAY” WITHIN THE MEANING OF THE INDUSTRIAL CODE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the floor of an elevator is not a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action based upon an Industrial Code provision requiring that “passageways” be kept free from dirt, debris and other obstructions was inapplicable, However, the code provision requiring “floors” and “platforms” be kept free from scattered tools, etc., did apply to elevators:

Supreme Court should have granted defendants’ motion for summary judgment dismissing plaintiff’s Labor Law § 241 (6) claim insofar as it was predicated on 12 NYCRR § 23-1.7 (e) (1). That regulation provides, as relevant here, “All passageways shall be kept free from accumulations of dirt and debris and from any other obstructions or conditions which could cause tripping.” A passageway for purposes of this regulation “mean[s] a defined walkway or pathway used to traverse between discrete areas as opposed to an open area” … . The elevator in which plaintiff’s accident occurred cannot be considered a walkway or pathway, and therefore cannot constitute a passageway within the meaning of the regulation … . Smith v Extell W. 45th LLC, 2024 NY Slip Op 04533, First Dept 9-24-24

Practice Point: The floor of the elevator where plaintiff’s accident occurred is not a “passageway” within the meaning of the Industrial Code. Therefore the Labor Law 241(6) cause of action alleging a violation of the “passageway” code provision should have been dismissed.

 

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DEFENDANT, AS AN OUT-OF-POSSESSION LANDLORD, WAS NOT LIABLE FOR AN ALLEGED DANGEROUS CONDITION ON THE PROPERTY; PLAINTIFF’S REFERENCES TO UNPLEADED CAUSES OF ACTION (LABOR LAW 240(1) AND LABOR LAW 241(6)) IN THE BILL OF PARTICULARS WERE UNSUPPORTED; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing Supreme Court and dismissing plaintiff’s complaint, determined defendant was an out-of-possession landlord who was not responsible for the alleged dangerous condition on the property and the Labor Law 240(1) and 241(6) causes of action, although mentioned in the bill of particulars, were not pleaded. Plaintiff was doing work on cabinets when she was struck by a piece of wood that flew off a table saw operated by another worker. She sued under a negligence theory (dangerous condition) and under Labor Law section 200 (which codifies common law negligence):

“[A] landowner who has transferred possession and control is generally not liable for injuries caused by dangerous conditions on the property” … . “‘An out-of-possession landlord can be held liable for injuries that occur on its premises only if the landlord has retained control over the premises and if the landlord is contractually or statutorily obligated to repair or maintain the premises or has assumed a duty to repair or maintain the premises by virtue of a course of conduct'” … .

… [T]he evidence … , including … the written lease … and transcripts of the deposition testimony … established … that the defendant was an out-of-possession landlord that had relinquished control of the subject property to Tobin and had not assumed a duty to maintain the property in a reasonably safe condition by a course of conduct … . Although the defendant reserved a right of entry under the lease, this did not provide a sufficient basis on which to impose liability upon the defendant for injuries caused by a dangerous condition, as the condition did not violate a specific statute, nor was it a significant structural or design defect … .

Modern practice permits a plaintiff, in some circumstances, to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action that is supported by the plaintiff’s submissions, where the plaintiff has not engaged in unexcused protracted delay in presenting the new theory of liability… . … Here … the plaintiff’s unpleaded causes of action alleging violations of Labor Law §§ 240(1) and 241(6) are not supported by the plaintiff’s submissions, as the record demonstrates that the plaintiff’s work at the time of her injury did not involve “construction, excavation or demolition work” within the meaning of Labor Law § 241(6), or “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure” within the meaning of Labor Law § 240(1) … . Miranda v 1320 Entertainment, Inc., 2024 NY Slip Op 04313, Second Dept 8-28-24

Practice Point: Here the defendant demonstrated out-of-possession landlord status and was therefore not liable for an alleged dangerous condition on the property.​

Practice Point: Although unpleaded causes of action mentioned for the first time in the bill of particulars can be considered in opposition to a summary judgment motion, here the unpleaded Labor Law 240(1) and 241(6) causes of action were unsupported by the plaintiff’s submissions. The complaint should have been dismissed.

 

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CLAIMANT FELL ATTEMPTING TO MOVE FROM AN UPPER WALKWAY TO A LOWER WALKWAY; CLAIMANT WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) AND LABOR LAW 241(6) CAUSES OF ACTION (SECOND DEPT).

The Second Department, reversing the Court of Claims, determined claimant construction-worker’s motions for summary judgment pursuant to Labor Law 240(1) and Labor Law 241(6) should have been granted. Claimant was attempting to move from a walkway on one level to a walkway on a lower level when the handrail swung away from him, the walkway shifted, and he fell. The defendant’s failure to provide a ladder warranted summary judgment on the Labor Law 240(1) cause of action. And the violation of two Industrial Code provisions warranted summary judgment on the Labor Law 241(6) cause of action:

Although the defendant contended that the sole proximate cause of the accident was the claimant’s decision to use the wooden pallet, rather than a readily available ladder, to descend from the upper walkway, the defendant failed to submit sufficient evidence to raise a triable issue of fact as to whether a proper ladder was readily available to the claimant or whether the claimant had been instructed to use a ladder rather than the wooden pallet installed between the walkway levels … . …

… [T]he defendant violated 12 NYCRR 23-1.7(f) by failing to provide “ladders or other safe means of access” from walkway levels on the work site and that this violation was a proximate cause of the accident. ,,, [T]he defendant violated 12 NYCRR 23-1.15(a) by failing to provide a safety railing that was “securely supported.” Chiarella v New York State Thruway Auth., 2024 NY Slip Op 04122, Second Dept 8-7-24

Practice Point: Defendant in the Labor Law 240(1) cause of action did not demonstrate a ladder was readily available. Therefore defendant did not demonstrate claimant’s failure to use a ladder to move from an upper walkway to a lower walkway was the sole proximate cause of claimant’s fall.

 

ALTHOUGH PLAINTIFF FAILED TO TIE OFF HIS LANYARD, THAT FAILURE WAS NOT THE SOLE PROXIMATE CAUSE OF HIS INJURY; PLAINTIFF FELL WHEN A PLANK ON THE SCAFFOLD BROKE; PLAINTIFF SHOULD HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was wearing a safety harness with a lanyard when a coworker asked for help in securing the scaffold to the wall. Plaintiff was not able to hook his lanyard to the scaffold because he was carrying a pipe and a clamp, the lanyard was only four feet long, and he had to walk 20 feet to the wall. A plank on the scaffold broke and plaintiff fell. Supreme Court found that were questions of fact whether plaintiff was the sole proximate cause of his injury and whether he was a recalcitrant worker. Because the plank broke, plaintiff’s actions or omissions could not be the sole proximate cause of his injury:

… [T]he plaintiffs established, prima facie, that Labor Law § 240(1) was violated and that the violation was a proximate cause of the injured plaintiff’s injuries. The undisputed evidence established that the injured plaintiff was subjected to the elevation-related risk of the wooden plank which broke suddenly, causing the injured plaintiff to fall … .

In opposition to the plaintiffs’ prima facie showing, the defendants failed to raise a triable issue of fact as to whether the injured plaintiff’s own conduct was the sole proximate cause of his injuries. Since the plaintiffs established a violation of Labor Law § 240(1) and that the violation was a proximate cause of the injured plaintiff’s fall, the injured plaintiff’s comparative negligence, if any, is not a defense to the cause of action alleging a violation of that statute … . Further, the defendants did not present evidence that the injured plaintiff was recalcitrant in the sense that he was instructed to tie and untie his lanyard to traverse the scaffold and refused to do so … . Amaro v New York City Sch. Constr. Auth., 2024 NY Slip Op 04052, Second Dept 7-31-24

Practice Point: As long as an elevation hazard is a cause of plaintiff’s injury (here a scaffold plank broke), whether an act or omission on plaintiff’s part (here the failure to hook up his lanyard) contributed to his injury is not an issue under Labor Law 240(1).

 

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PLAINTIFF FELL FROM AN A-FRAME LADDER OWNED BY A CONTRACTOR, DAL, HE DID NOT WORK FOR; BASED ON DISPUTED EVIDENCE THE LADDER WAS DEFECTIVE, DAL’S MOTION FOR SUMMARY JUDGMENT ON THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION WAS DENIED BY SUPREME COURT; THE FIRST DEPARTMENT, OVER A DISSENT, REVERSED, FINDING DAL DID NOT OWE PLAINTIFF A DUTY OF CARE (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Oing, over a dissenting opinion, determined defendant contractor, DAL, did not owe a duty of care to plaintiff who fell from an A-frame ladder owned by DAL. Plaintiff had finished his measuring work using a ladder and scaffold which he had removed from the area. Plaintiff was then asked to confirm his measurements. He returned to the area and used an A-frame ladder that was already set up there. The ladder wobbled and he fell. It turned out the ladder was owned by DAL, with which plaintiff had no connection. There was disputed evidence the ladder was defective and DAL was alleged to have created a dangerous condition. Supreme Court found there was a question of fact supporting plaintiff’s Labor Law 200 and common-law negligence causes of action. The majority reversed, finding DAL did not owe plaintiff a duty of care:

Because DAL was not an owner, a general contractor, or a statutory agent of an owner or general contractor, the Labor Law § 200 claim against it could not stand … . * * *

… [G]iven that DAL did not enter into a contract with plaintiff or his employer, a duty of care to plaintiff cannot arise out of a contractual relationship … . Any contractual obligations DAL may have had to its employees or to JRM, the general contractor, did not extend to plaintiff … . The question that remains is whether DAL may still owe a duty of care to plaintiff. Generally, a contracting party does not owe a duty of care to a noncontracting third party … . There are three well-settled exceptions to this general rule: (1) where the contracting party, in failing to exercise reasonable care in the performance of his or her duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely … . * * *

… [T]he record establishes that the DAL ladder was left by a DAL employee in the fifth-floor pantry at some point in the late morning on the day of accident, and that plaintiff saw the unattended ladder when he returned to the fifth-floor pantry to review his measurements from earlier that morning. Plaintiff did not know or ascertain who owned the ladder … . … [P]laintiff did not obtain permission to use the ladder, … DAL did not supply or provide plaintiff with the ladder for use to complete his tasks, … DAL had no duty to provide plaintiff with a safe or adequate ladder, and … DAL did not supervise, direct or control plaintiff’s work. … DAL did not launch a force or instrument of harm. Thus, under Espinal, DAL did not owe a duty of care to plaintiff, and plaintiff’s common-law negligence claim against it cannot stand. Dibrino v Rockefeller Ctr. North, Inc., 2024 NY Slip Op 03558, First Dept 7-2-24

Practice Point: Here plaintiff fell from an allegedly defective ladder belonging to a contractor he did not work for. Because none of the Espinal factors applied, the contractor did not owe plaintiff a duty of care. There was a dissenting opinion.​

 

AS PLAINTIFF WAS REMOVING DUCTS FROM THE CEILING, A PORTION OF A DUCT STRUCK PLAINTIFF AND THE A-FRAME LADDER CAUSING HIM AND THE LADDER TO FALL TO THE FLOOR; IT IS ENOUGH THAT THE LADDER WAS “UNSECURED;” PLAINTIFF NEED NOT SHOW THE LADDER WAS DEFECTIVE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this ladder-fall case. Plaintiff was provided with an A-frame ladder to remove duct work from the ceiling. A portion of the duct fell causing the ladder to tip and plaintiff fell to the floor. The court noted that plaintiff need not prove the ladder was defective. In addition, summary judgment is appropriate even where, as here, plaintiff is the only witness to the incident:

Labor Law § 240(1) “mandates that owners and contractors provide devices which shall be so constructed, placed and operated as to give proper protection to persons performing work covered by the statute” … . As the building owner, defendant had the duty to provide proper protection to plaintiff, a worker, pursuant to section 240(1) … .

For purposes of liability under section 240(1), “[i]t is sufficient . . . that adequate safety devices to prevent the ladder from slipping or to protect the plaintiff from falling were absent” … . Here, plaintiff’s testimony that he was not provided with any other safety protection except an unsecured ladder, which fell along with plaintiff when both were hit by the duct, established prima facie entitlement to judgment as a matter of law … . Rivera v 712 Fifth Ave. Owner LP, 2024 NY Slip Op 03562, First Dept 7-2-24

Practice Point: If plaintiff falls from an “unsecured” A-frame ladder, summary judgment on the Labor Las 240(1) cause of action is appropriate even where there is no proof the ladder was defective and there were no witnesses.

 

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DEBRIS LEFT BEHIND AFTER WORK ON ANOTHER PROJECT WAS NOT “INTEGRAL” TO THE WORK PLAINTIFF WAS PERFORMING WHEN HE TRIPPED AND FELL; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON CERTAIN LABOR LAW 241(6) CAUSES OF ACTION BASED UPON INDUSTRIAL CODE VIOLATIONS; IN ADDITION THE CITY DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE DEBRIS; THEREFORE THE LABOR LAW 200 AND COMMMON-LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on certain Labor Law 241(6) causes of action and the city’s motion to dismiss the Labor Law 200 and common-law negligence claims should not have been granted. Plaintiff tripped on discarded plastic and rock debris from prior sidewalk demolition and construction. Plaintiff was working on reconstruction of a sidewalk bridge when he fell. Therefore the plastic and rock debris did not constitute material integral to the work plaintiff was performing as Supreme Court had held. In addition, although the city did not exercise supervisory control over the work, the Labor Law 200 and common-law negligence causes of action should not have been dismissed because the city did not demonstrate a lack of constructive notice of the dangerous condition created by the debris:

The plastic and the rock were not integral to the work performed by plaintiff or his coworkers because it constituted an accumulation of debris from previous work that was left in a “passageway” or “working area” which should have been kept free of debris ​… . * * *​

The “task at hand” did not involve demolition. It is uncontested that plaintiff and his coworkers were dismantling and rebuilding a sidewalk bridge at a new location and that plaintiff fell when he slipped and tripped while manually transporting a heavy beam to the new location. While it is undisputed that Padilla was a general contractor that did demolition work, the court’s overly broad view of the integral to the work defense reads [Industrial Code] sections 23-1.7(e)(1) and (2) out of existence. Lourenco v City of New York, 2024 NY Slip Op 03540, First Dept 6-27-24

Practice Point: Debris left over from another job was not “integral” to the work being performed at the time of plaintiff’s fall, therefore the presence of the debris violated certain provisions of the Industrial Code.​

Practice Point: Although the city did not exercise supervisory control over the work, it did not demonstrate a lack of constructive notice of the dangerous condition. Therefore the Labor Law 200 and common-law negligence causes of action should not have been dismissed.

 

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IN THIS LADDER-FALL CASE, DEFENDANT PROPERTY MANAGER DID NOT DEMONSTRATE A LACK OF CONTRUCTIVE NOTICE OF THE DANGEROUS CONDITION OR THAT IT LACKED CONTROL OVER THE WORK SITE; THE LABOR LAW 200 AND COMMON LAW NEGLIGENCE CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED; IN ADDITION PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant property management company (Fulton) was not entitled to dismissal of the Labor Law 200 and common-law negligence causes of action and plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this ladder-fall case. Plaintiff fell when a permanent ladder attached to the building came loose:

… [T]he Fulton defendants failed to establish … that they lacked actual or constructive notice of the allegedly dangerous condition of the ladder, which the plaintiff described in his deposition as rusty and old. The evidence the Fulton defendants submitted in support of their motion “did not eliminate triable issues of fact as to whether the allegedly dangerous condition of the [ladder] should have been discovered upon a reasonable inspection” … . Furthermore, the Fulton defendants failed to establish … that they lacked control over the work site … . * * *

“The collapse of a scaffold or ladder for no apparent reason while a plaintiff is engaged in an activity enumerated under the statute creates a presumption that the ladder or scaffold did not afford proper protection” … . Through the submission of his deposition testimony, the plaintiff established … that he was exposed to an elevation risk within the ambit of Labor Law § 240(1), that the ladder collapsed for no apparent reason, and that the inadequately secured ladder was a proximate cause of his injuries … .

… [I]n opposition … the … defendants … failed to present a plausible view of the evidence—enough to raise a triable issue of fact—that there was no statutory violation and that the plaintiff’s own acts or omissions were the sole cause of the accident … . Valentin v Stathakos, 2024 NY Slip Op 03512, Second Dept 6-26-24

Practice Point: Here the permanent ladder which came loose causing plaintiff’s fall was “old and rusty” which raised a question of fact whether the defendant property manager had constructive notice of the condition. The Labor Law 200 and common law negligence causes of action should not have been dismissed.

Practice Point: In the absence of evidence plaintiff was the sole proximate cause of the accident, the collapse of a ladder warrants summary judgment on a Labor Law 240(10 cause of action.

 

IN THIS LABOR LAW 240(1) ACTION, PLAINTIFF STEPPED ON A SMALL WOODEN “PATCH” COVERING A HOLE IN THE FLOOR AND HIS LEG WENT THROUGH THE HOLE; DEFENDANT’S ARGUMENT THE ACCIDENT WAS NOT FORESEEABLE WAS REJECTED; THE PRECISE NATURE OF THE ACCIDENT NEED NOT BE FORESEEN; IT IS ENOUGH PLAINTIFF WAS SUBJECTED TO AN ELEVATION-RELATION RISK AND NO SAFETY EQUIPMENT WAS PROVIDED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action. Plaintiff was walking on a floor which had holes in it where mechanical equipment had been removed. When plaintiff stepped on a 12-inch by 12-inch “patch” which had been placed over a hole his leg went through and he was injured. The First Department rejected defendant’s argument that the incident was not foreseeable:

Plaintiff was working in the interstitial space, approximately eight feet from the 11th floor below, and was thus exposed to the effects of gravity. … [T]he affixing of “harnesses and safety lines attached to a safe structure” are the type of safety devices envisioned by § 240(1) to prevent a worker from falling through a collapsing floor … , which plaintiff was not provided.

… “A plaintiff in a case involving the collapse of a permanent structure must establish that the collapse was ‘foreseeable,’ not in a strict negligence sense, but in the sense of foreseeability of plaintiff’s exposure to an elevation-related risk”… . To establish foreseeability, “[a] plaintiff need not demonstrate that the precise manner in which the accident happened, or the injuries occurred was foreseeable; it is sufficient that [plaintiff] demonstrate that the risk of some injury from defendant’s conduct was foreseeable” … . This foreseeability analysis … applies to the partial collapse of a permanent structure … . Ciaurella v Trustees of Columbia Univ. in the City of N.Y., 2024 NY Slip Op 03455, First Dept 6-25-24

Practice Point; This is the second Labor Law 240(1) case in recent weeks involving the collapse of a permanent structure (a roof in the prior case and here a floor). In both cases the Appellate Division rejected the argument the accident was not foreseeable.

 

IT WAS FORSEEABLE THAT A LEAKY ROOF NEEDING REPAIR WOULD COLLAPSE WHEN PLAINTIFF WAS STANDING ON IT; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff, who fell when the roof he was working on collapsed, was entitled to summary judgment on his Labor Law 240(1) cause of action. The court noted the accident was foreseeable and no protective device was provided:

“‘In order for liability to be imposed under Labor Law § 240(1), there must be a foreseeable risk of injury from an elevation-related hazard . . . as defendants are liable for all normal and foreseeable consequences of their acts'” … . “Thus, to establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged” … .

Here, the plaintiffs demonstrated, prima facie, that the need for safety devices to protect the injured plaintiff from an elevation-related hazard was foreseeable, as the injured plaintiff was replacing wood decking on a pitched, elevated roof that had sustained water leaks, and that his injuries were proximately caused by the lack of adequate safety devices … . Sanchez v Congregation of Emanuel of Westchester, 2024 NY Slip Op 03446, Second Dept 6-20-24

Practice Point: An accident must be foreseeable to trigger liability under Labor Law 240(1). Here the court deemed it foreseeable that a roof which leaked and needed repair would collapse when plaintiff was standing on it.

 

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