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Failure to Identify in the Complaint and Bill of Particulars the Specific Code Provision(s) Alleged to Have Been Violated Is Not Fatal to a Labor Law 241(6) Cause of Action

The Second Department noted that the failure to identify, in the complaint and bill of particulars, the specific code provision alleged to have been violated (in support of a Labor Law 241(6) cause of action) is not a fatal defect:

Although a plaintiff asserting a Labor Law § 241(6) cause of action must allege a violation of a specific and concrete provision of the Industrial Code …, the failure to identify the code provision in the complaint or bill of particulars is not fatal to such a claim … . Here, the plaintiff’s belated allegations that Cook violated 12 NYCRR 23-1.21(b)(1), 23-1.21(b)(3)(i), 23-1.21(b)(3)(iv), 23-1.21(b)(4)(ii), and 23-1.21(e)(2) involved no new factual allegations, raised no new theories of liability, and caused no prejudice … . Moreover, these code provisions set forth specific, rather than general, safety standards, and are sufficient to support a Labor Law § 241(6) cause of action … . Przyborowski v A&M Cook LLC, 2014 NY Slip Op 05852, 2nd Dept 8-20-14

 

Subcontractor Which Supervised Plaintiff’s Work Was An Agent for the General Contractor

The Second Department determined a subcontractor which assumed a supervisory role over plaintiff’s work was liable under Labor Law 240(1) as an agent of the general contractor:

To hold a defendant liable as an agent of the general contractor for violations of Labor Law §§ 240(1) and 241(6), there must be a showing that it had the authority to supervise and control the work … . “The determinative factor is whether the party had the right to exercise control over the work, not whether it actually exercised that right” … . Where the owner or general contractor does in fact delegate the duty to conform to the requirements of the Labor Law to a third-party subcontractor, the subcontractor becomes the statutory agent of the owner or general contractor … . Van Blerkom v America Painting LLC, 2014 NY Slip Op 05858, 2nd Dept 8-20-14

 

Labor Law 200 Action Is Not Based Upon Supervision or Control of Plaintiff’s Work, But Rather on the Property Owner’s Creation or Failure to Remedy a Dangerous Condition

The Second Department noted that a negligence case of action pursuant to Labor Law 200 is not based upon supervision or control over the plaintiff’s work, but rather is based upon whether the property owner (the Town)ncreated or failed to remedy a dangerous condition:

The Supreme Court also properly denied those branches of the Town’s motion which were for summary judgment dismissing the Labor Law § 200 and common-law negligence causes of action insofar as asserted against it. Before the Supreme Court and on appeal, in support of these branches of its motion, the Town focused exclusively upon its alleged lack of supervision of, or control over, the plaintiff’s work. That argument is only relevant where the claimed injury arises from the manner in which the work is performed … . Where, as here, the injury arises from an allegedly defective or dangerous condition on the premises, the allegedly unsecured and improperly stored electrical wire, a property owner will be liable under a theory of common-law negligence, as codified by Labor Law § 200, when the owner created the alleged dangerous or defective condition, or failed to remedy a dangerous or defective condition of which it had actual or constructive notice … . Baumann v Town of Islip, 2014 NY Slip Op 05825, 2nd Dept 8-20-14

 

Fall Into a Three-to-Four-Foot-Deep Hole Is Not an Elevation-Related Event Under Labor Law 240(1)

The Fourth Department determined that falling into a hole is not an “elevation-related event” within the meaning of Labor Law 240(1).  The court further determined that regulation requiring that an excavation near a “sidewalk, street or highway or other area lawfully frequented by any person…” be guarded or covered did not apply to employees at a work site. With respect to the elevation requirement for section 240(1), the court wrote:

Where, as here, a plaintiff falls into a hole while walking at ground level, the plaintiff’s injury “[is] not caused by [defendants’] failure to provide or erect necessary safety devices in response to elevation-related hazards,’ and, accordingly, the protections of Labor Law § 240 (1) do not apply” … . The cases relied upon by plaintiff are factually distinguishable because they involve falls into excavated areas, as opposed to mere holes in the ground such as the one here … . Unlike the excavation cases, this is not a case where protective devices enumerated in Labor Law § 240 (1), e.g., “scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, [and] ropes” were designed to apply… . Wrobel v Town of Pendelton, 2014 NY Slip Op 05738, 4th Dept 8-8-14

 

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Contractor Was a Statutory Agent for the Owner for Purposes of the Labor Law Causes of Action

The First Department explained that a contractor (Bovis) with the authority to direct plaintiff’s work became a statutory agent for the city with respect to the Labor Law 240(1) and 241(6) causes of action:

…[T]he undisputed evidence established that Bovis was a statutory agent for the City since it possessed and exercised supervisory control and authority over the work being done … . ” When the work giving rise to [the duty to conform to the requirements of section 240(1)] has been delegated to a third party, that third party then obtains the concomitant authority to supervise and control that work and becomes a statutory “agent” of the owner or general contractor'” … . Bovis’s own superintendent testified that Bovis functioned as the “eyes and ears” of the City for the subject construction project, and it had broad responsibility under its contract to coordinate and supervise the work of the four prime contractors, including plaintiff’s employer … . Johnson v City of New York, 2014 NY Slip Op 05698, 1st Dept 8-7-14

 

“Cleaning” Within the Meaning of Labor Law 240(1) Explained

The Second Department determined defendants were not entitled to summary judgment dismissing plaintiff’s Labor Law 240(1) action. Plaintiff fell from a 20-foot ladder while cleaning windows.  The defendants were unable to demonstrate that the activity plaintiff was engaged in was not covered by Labor Law 240(1):

Labor Law § 240(1) provides protection for those workers performing maintenance that involves painting, cleaning, or pointing … . Other than commercial window cleaning, which is afforded protection pursuant to the statute …, whether an activity is considered “cleaning” for the purpose of Labor Law § 240(1) depends on certain factors. An activity is not considered “cleaning” when (1) it is performed on a routine or recurring basis as part of the ordinary maintenance and care of commercial premises, (2) does not require specialized equipment or expertise, (3) usually involves insignificant elevation risks comparable to those encountered during typical domestic or household cleaning, and (4) is unrelated to any ongoing construction, renovation, painting, alteration, or repair project … . “Whether [an] activity is cleaning’ is an issue for the court to decide after reviewing all of the factors. The presence or absence of any one is not necessarily dispositive if, viewed in totality, the remaining considerations militate in favor of placing the task in one category or the other” … .

The evidence submitted by the defendants in support of their motion failed to establish, prima facie, that the plaintiff’s activity at the time of the accident could not be characterized as “cleaning” under Labor Law § 240(1). The evidence did not definitively demonstrate that the plaintiff was performing a routine task or that it was a task that involved an insignificant elevation risk which was comparable to those risks inherent in typical household cleaning … . Pena v Varet & Bogart LLC, 2014 NY Slip Op 05524, 2nd Dept 7-30-14

 

Block Falling from Pallet Covered Under Labor Law 240(1)/Criteria for Common Law Indemnification Explained

The Second Department determined injury from a stone block falling from a pallet was covered by Labor Law 240(1).  The court also explained the requirements for common law indemnification:

The defendants failed to establish their prima facie entitlement to judgment as a matter of law. Labor Law § 240(1) mandates that owners and contractors “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” The statute imposes absolute liability on owners and contractors whose failure to “provide proper protection to workers employed on a construction site” proximately causes injury to a worker … . The defendants failed to show that the injured plaintiff’s alleged injuries resulted from a general hazard encountered at a construction site and were not “the direct consequence of a failure to provide” an adequate device of the sort enumerated in Labor Law § 240(1) … . Those devices are intended to protect “against a risk arising from a physically significant elevation differential” (id. at 603). The defendants’ submissions did not establish that the accident was not the result of a failure to provide a protective device contemplated by the statute … . * * *

The key element of a cause of action for common-law indemnification is not a duty running from the indemnitor to the injured party, but rather, is a separate duty owed the indemnitee by the indemnitor … . ” Since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party who has itself actually participated to some degree in the wrongdoing cannot receive the benefit of the doctrine'”… . Desena v North Shore Hebrew Academy, 2014 NY Slip Op 05149, 2nd Dept 7-9-14

 

Questions of Fact Raised About Labor Law 240(1), 240(6) and 200 Causes of Action—Labor Law 200 Actions Are Not Limited to Construction Work (Question of Fact About Unsafe Work Site Will Support Labor Law 200 Cause of Action)

The Fourth Department noted that Labor Law 200 causes of action are not limited to construction work and, with respect to one of the defendants,  a question of fact had been raised about the safety of the work site.  Plaintiff was injured when he drove a forklift over plywood covering a pit used to store linens in an industrial laundry operation. Questions of fact had also been raised about whether work being done by the plaintiff was covered by Labor Law 240(1) and Labor Law 240 (6). With respect to the Labor Law 240(1) cause of action against two of the defendants, the court wrote:

…[T]he court properly denied [defendants’] respective motions for summary judgment with respect to the Labor Law § 240 (1) claim because there are issues of fact whether plaintiff was engaged in an activity covered by that section. To fall under the protection of Labor Law § 240 (1), “the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, [or] altering . . . of a building or structure’ ” or must have “involve[d] . . . such activities” … . Here, the parties’ submissions raise an issue of fact whether plaintiff himself was “altering” or making a “significant physical change to the configuration or composition of the building or structure” at the time of his injury … . Specifically, the record is unclear whether plaintiff was in the process of simply moving a “towel folder,” which would not afford him the protection of section 240 (1) …, unless that activity “was . . . ancillary” to the ongoing renovation work … ; or, whether he was removing an old machine weighing approximately 1,000 pounds and then installing and securing to the cement floor a new machine as a replacement, which would afford him the protection of section 240 (1) … . Foots v Consolidated Bldg Contrs Inc, 2014 NY Slip Op 05058, 4th Dept 7-3-14

 

Cleaning Cement Truck After Cement-Delivery Not Covered by Labor Law 240

The Fourth Department, over a dissent, determined plaintiff was not engaged in an activity protected by Labor Law 240 at the time of the injury.  Plaintiff had just delivered concrete to the defendant farm and was cleaning his truck when he fell from a ladder attached to the truck:

…[W]e agree with defendant that the activity in which plaintiff was engaged at the time of his injury, i.e., the routine cleaning of his employer’s cement truck after making a delivery, “was not the kind of undertaking for which the Legislature sought to impose liability under Labor Law § 240′ ” … . Specifically, plaintiff “was not engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing’ of a building or structure’ within the intended meaning of Labor Law § 240 (1)” … . Rather, he was “engaged in routine maintenance” of the cement truck, “which is not a protected activity under Labor Law § 240 (1)” … .

We reject the dissent’s view that this case is distinguishable from Koch because the plaintiff in that case was “merely a delivery driver” while “there is evidence here that plaintiff operated the machinery of the cement truck to assist in the pouring of the concrete as part of the construction of the silo.” Any such distinction, even if supported by the record, is irrelevant to the applicability of Labor Law § 240 (1).  Bish v Odell Farms Partnership, 2014 NY Slip Op 05063, 4th Dept 7-3-14

 

Plaintiff’s Labor Law 240 and 200 Actions Against the Town Should Have Been Dismissed—Although the Town Hired Plaintiff to Do Work on the Town’s Right of Way, the Accident Occurred on Adjacent Private Property—Labor Law 200 Action Against the Property Owners Should Not Have Been Dismissed

The Fourth Department, over a dissent, determined the Labor Law 240 and 200 actions against the town should have been dismissed because the injury occurred on private land, not town land.  The court further determined that the Labor Law 200 action against the landowners (the Hersheys) should not have been dismissed because the owners did not demonstrate as a matter of law their lack of notice of the dangerous condition.  The plaintiff had been hired by the town to do sidewalk and driveway work on the town’s right of way next to the Hersheys’ property. The plaintiff was parking a backhoe on the Hersheys’ property, with the Hersheys’ permission, when it tipped over into a ravine:

…[W]e agree with the Town that the court erred in denying the Town’s motion for summary judgment dismissing the Labor Law §§ 240 (1) and 241 (6) causes of action against it, inasmuch as the Town is not an “owner” for purposes of those statutes … . It is well settled that “the term owner’ is not limited to the titleholder of the property where the accident occurred and encompasses a person who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit’ ” … . Here, the accident occurred well outside of the Town’s right-of-way, and the Town had no other interest in or legal authority over the landing area, which was located entirely on the Hersheys’ private property … . The Town established that it was Kenneth Hershey, not the Town, who gave plaintiff permission to park in the landing area; that the Town had no authority to grant such permission to plaintiff; and that Kenneth Hershey directed plaintiff where to park. Further, the Town established that the landing area was not part of the construction site … . No work was being performed in the landing area, and the landing area was not contiguous or in proximity to the construction site … . Moreover, the Town established that it was not necessary for plaintiff to park the backhoe in the landing area. The Town provided plaintiff with parking in a municipal garage, which was located a few miles from the work site. Plaintiff, however, testified at his deposition that he chose to use the landing area because it was closer to the work site and more “convenient” to do so … . Farruggia v Town of Penfield, 2014 NY Slip Op 4th Dept 7-3-14

 

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