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PLAINTIFF FELL FROM A SCAFFOLD WITH NO GUARDRAILS; DEFENDANTS’ AFFIDAVIT ALLEGING GUARDRAILS WERE AVAILABLE WAS NOT BASED ON FIRST-HAND KNOWLEDGE AND THEREFORE DID NOT RAISE A QUESTION OF FACT; PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action in this scaffold-fall case. The scaffold had no guardrails. The affidavit presented by the defendants stating that there were guardrails available did not raise a question of fact because the affiant was not at the site on the day of the fall:

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law on his Labor Law § 240(1) cause of action by submitting undisputed evidence that he fell off a scaffold, which lacked guardrails that would have prevented his fall, after the scaffold moved while he was standing atop it … .

Defendants failed to raise an issue of fact in opposition as to whether plaintiff was a recalcitrant worker. Although defendants presented an affidavit from the principal of nonparty contactor and plaintiff’s employer stating that there was a standing order for its employees to use only baker scaffolds with safety railings, that there were safety railings available at the worksite, and that safety railings would be provided upon request, this testimony does not suffice to raise an issue of fact. On the contrary, the principal expressly acknowledged that he was not present on the worksite on the date of plaintiff’s injury, and he offered no basis to find that he personally knew sufficient guardrails were present at the worksite for plaintiff to use on the scaffold … . Indeed, plaintiff testified that there were no guardrails available for use on the date of the incident. Ruiz v BOP 245 Park LLC, 2024 NY Slip Op 05419, First Dept 10-31-24

Practice Point: Here an affidavit which was not based on first-hand knowledge was deemed insufficient to raise a question of fact.

 

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PHOTOS SUBMITTED AS A NOTICE TO ADMIT DID NOT SHOW THE METAL OVER WHICH PLAINTIFF ALLEGEDLY TRIPPED AND FELL; ALTHOUGH THE PHOTOS ARE DEEMED TO SHOW THE PROJECT SITE ON THE DAY OF THE FALL, THERE WAS NO EVIDENCE THE PHOTOS DEPICTED THE CONDITION OF THE SITE AT THE TIME OF THE FALL OR IMMEDIATELY PRIOR TO THE FALL (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff alleged he tripped on metal debris and fell. Defendants submitted three photographs alleged to depict the project site on the day of the plaintiff’s fall as a notice to admit. The photos did not show any metal debris. Although plaintiff did not respond to the notice to admit, thereby deeming the allegations admitted, the photos did not establish the condition of the depicted area at the time of plaintiff’s trip and fall, or immediately prior to the fall:

According to plaintiff, his accident occurred as he was retrieving wooden planks for his coworker to install on the floor. Doing so required plaintiff to traverse over an uncovered beam pocket measuring three feet wide and three feet deep. His accident occurred when he tripped over metal debris on the floor and fell into the beam pocket. Plaintiff was wearing a harness with a yo-yo/at the time of his accident, but there was no place for him to tie off. * * *

… Defendants rely on a notice to admit that they served on plaintiff seeking his admissions that three photos annexed thereto … depicted the project site on the day of plaintiff’s accident. Plaintiff did not respond to the notice to admit, deeming the allegations admitted (CPLR 3123 [a]). However, these admissions do not establish that those photos fairly and accurately depict the location of plaintiff’s accident either at the time thereof or immediately prior thereto. Thus, the absence from those photos of the metal on which plaintiff claims to have tripped does not raise an issue of fact as to the manner in which plaintiff’s accident occurred. Guzman-Saquisili v Harlem Urban Dev. Corp., 2024 NY Slip Op 05420, First Dept 10-31-24

Practice Point: Photos which depict the condition of the area of plaintiff’s fall on the day of the fall, without more specificity about when the photos were taken, may not be deemed to depict the area at the time of the fall or immediately prior to the fall.

 

INSTALLING ELECTRIC CABLES IS CONSTRUCTION WORK WITHIN THE MEANING OF LABOR LAW 241(6); PLAINTIFF, WHO WAS STRUCK IN THE EYE BY A CABLE, SUFFICIENTLY DEMONSTRATED THE EYE-PROTECTION-EQUIPMENT REGULATION IN THE INDUSTRIAL CODE APPLIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant, Kamco, was not entitled to summary judgment dismissing plaintiff’s Labor Law 241(6) cause of action. Plaintiff (Lopez) alleged he was struck in the eye by an electrical cable as he was attempting to connect it. Plaintiff (Lopez) alleged Kamco violated the Industrial Code by failing to provide eye-protection equipment:

“‘[T]he courts have generally held that the scope of Labor Law § 241(6) is governed by 12 NYCRR 23-1.4(b)(13), which defines construction work expansively. Under that regulation, construction work consists of [a]ll work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures'” … . Construction work pursuant to 12 NYCRR 23-1.4(b)(13) may include “the work of hoisting, land clearing, earth moving, grading, excavating, trenching, pipe and conduit laying, road and bridge construction, concreting, . . . equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.”

… “In order to establish prima facie entitlement to summary judgment, a defendant must show that the plaintiff failed to identify a section of the Industrial Code that was allegedly violated, that any such section is insufficiently specific to support liability or is inapplicable to the facts of the case, or that the defendant complied with the requirements of the identified provision” … .

Here, since Lopez was engaged in the installation and furnishing of electrical cables, Kamco failed to establish, prima facie, that Labor Law § 241(6) was inapplicable to Lopez’s activities … . Kamco also failed to establish, prima facie, that 12 NYCRR 23-1.8(a) was inapplicable or that Lopez’s actions were the sole proximate cause of his alleged injuries, as Kamco failed to eliminate triable issues of fact as to whether Lopez was engaged in work that might endanger the eyes, whether approved eye protection was provided to Lopez on the date of the accident, and whether Kamco’s failure to require Lopez to wear safety goggles was a proximate cause of his alleged injuries … . Lopez v Kamco Servs., LLC, 2024 NY Slip Op 05338, Second Dept 10-30-24

Practice Point: Installing electric cables is construction work covered by Labor Law 241(6).

Practice Point: The Industrial Code provision requiring eye-protection-equipment may apply to plaintiff here who was struck in the eye by an electric cable.

 

PLAINTIFF FELL FROM AN UNSECURED LADDER WHEN STRUCK BY FALLING OBJECTS; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff fell from an unsecured ladder when hit by small beams falling from the ceiling:

Plaintiff is entitled to partial summary judgment on his Labor Law § 240(1) claim. Plaintiff met his prima facia burden by establishing that he was injured when he was hit by 20-to-30-pound small beams falling from the ceiling, causing him to lose balance while standing on an unsecured ladder … , and [defendant’s] evidence in opposition to this claim did not raise a triable issue of fact. Urquia v Deegan 135 Realty LLC, 2024 NY Slip Op 05080, First Dept 10-15-24

Practice Point: Losing one’s balance on an unsecured ladder when struck by a falling object makes out a prima facie case under Labor Law 240(1).

 

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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