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No Action Where Plaintiff Struck by Small Piece of Sheetrock Dropped from Third Floor

Plaintiff was struck by a small piece of sheetrock a worker dropped from the third floor.  In affirming the dismissal of the Labor Law 240(1) cause of action, the Second Department wrote:

As the Court of Appeals has observed, not every injury caused by a falling object at a construction site is covered by the extraordinary protections of Labor Law § 240(1)…. Rather, in a “falling object” case under Labor Law § 240(1)…, a plaintiff must show that, at the time the object fell, it was “being hoisted or secured” … or “required securing for the purposes of the undertaking”…. The plaintiff also must show that the object fell “because of the absence or inadequacy of a safety device of the kind enumerated in the statute”…. The statute 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…. Moncayo v Curtis Partition Corp, 2013 NY Slip Op 03644, 2nd Dept, 5-22-13

 

Fall from Unfolded Step Ladder Stated Claim​

In determining plaintiff’s use of a step ladder that was not unfolded did not warrant dismissal of the Labor Law 240(1) cause of action for a fall from the ladder, the First Department wrote:

Plaintiff established prima facie entitlement to summary judgment on his Labor Law § 240(1) claim as against defendants …by his testimony that: (1) the ladder was the only one available; (2) the ladder could not be properly opened into an A-frame stance due to excess debris in his narrowly confined work space; (3) he asked his foreman for another ladder, to no avail; (4) the ladder was unusual in that the step treads contained spikes which unexpectedly caught hold of his shoe as he was descending the improperly leaning ladder; (5) he was caused to fall backwards, from a height of approximately six feet; and (6) his right shoulder was injured when it struck the wooden work-zone barrier as he fell.  Keenan v Simon Prop Group, Inc, 2013 NY Slip Op 03622, 1st Dept, 5-22-13

 

“Sole Proximate Cause” Defense Not Demonstrated

In reversing Supreme Court and granting plaintiff’s motion for summary judgment, the First Department determined the facts did not support the defense that plaintiff was the sole proximate cause of the accident. Plaintiff was injured when a drill rig fell after safety chains had been removed. The First Department determined the facts demonstrated plaintiff was not solely responsible for removing the safety chains and, therefore, the “sole proximate cause” defense was not available:

The sole proximate cause defense generally applies where the worker misused, removed, or failed to use an available safety device that would have prevented the accident, or knowingly chose to use an inadequate device despite the availability of an adequate device …. However, “the Labor Law does not require a plaintiff to have acted in a manner that is completely free from negligence” … .

Plaintiff did not unilaterally elect to remove the chains and chain binders. Clark, the dock builder foreman who had the discretion to make the determination in the field as to the manner in which the drill rig would be moved, determined that the drill rig could not be pivoted with the chain binders attached, a belief plaintiff shared … .  Boyd v Schiavone Constr Co, Inc, 2013 NY Slip Op 03578, 1st Dept, 5-16-13

 

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Criteria for Motion to Amend Pleadings/Motion for Additional Depositions

In this Labor Law action, the Second Department explained the factors to be considered in a motion to amend the pleadings, and the factors to be considered in a motion for additional depositions:

Applications for leave to amend pleadings should be freely granted except when the delay in seeking leave to amend would directly cause undue prejudice or surprise to the opposing party, or when the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b];…). The sufficiency or underlying merit of the proposed amendment is to be examined no further ….  * * *

The moving party that is seeking additional depositions has the burden of demonstrating “(1) that the representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is a substantial likelihood that the persons sought for depositions possess information which is material and necessary to the prosecution of the case” …. Whether the defendant had the authority to supervise the means and methods of the work is material and relevant to the issue of liability in this case …. Gomez v State of New York, 2013 NY Slip Op 03455, 2nd Dept, 5-15-13

 

 

Backhoe Bucket Not “Falling Object” Within Meaning of Labor Law 240 (1)

Plaintiff was severely injured when a backhoe bucket that had been suspended over him came down and crushed him.  With respect to the Labor Law 240 (1) cause of action, the issue was whether the backhoe bucket was a “falling object” within the meaning of the statute. In affirming Supreme Court’s determination that the backhoe bucket was not a falling object, the Third Department wrote:

 …[L]iability does not extend to “harm . . . caused by an inadequate, malfunctioning or defectively designed  scaffold, stay or hoist” unless the injury itself was  caused by  “the application of the force of gravity to an  object or person” … .  Viewing the facts in the light most favorable to plaintiffs, the accident occurred as a result of … jostling the controls, causing the backhoe’s properly functioning hydraulic system to lower the bucket. Thus, the evidence  submitted  by  plaintiffs, if accepted  as true, would establish that “the backhoe  bucket  crushed  plaintiff[] . . . not because  of gravity, but  because  of its mechanical  operation by  an allegedly negligent co-worker” ….   Under these circumstances, Supreme Court properly dismissed plaintiffs’ section 240 (1) claim because there was no falling object – “the harm [did not] flow[] directly from the application of the force of gravity to [an] object” …, but from the usual and ordinary dangers of a construction site … .  Mohamed v City of Watervliet, 515473, 3rd Dept 5-9-13

 

Criteria for Labor Law 200 Claim Explained

The plaintiff fell when a plank on a catwalk broke.  In the course of the decision, which addressed several Labor Law claims, the Second Department explained the criteria for a Labor Law section 200 cause of action based on an alleged dangerous condition:

Labor Law § 200 “is a codification of the common-law duty imposed upon an owner or general contractor to maintain a safe construction site” …. Where, as here, a “premises condition is at issue, property owners may be held liable for a violation of Labor Law § 200 if the owner either created the dangerous condition that caused the accident or had actual or constructive notice of the dangerous condition that caused the accident” …. In opposition to the defendants’ prima facie showing that they lacked actual notice of a dangerous condition, the plaintiff’s deposition testimony that he had seen rotten, discolored planks on the catwalk and had reported the condition to the defendants’ foreman on three occasions in the two months prior to his accident was sufficient to raise a triable issue of fact as to whether the defendants had actual notice of the dangerous condition. Moreover, photographs of the broken catwalk in the record show cracked, warped, and discolored planks. Thus, the defendants failed to establish, prima facie, that they lacked constructive notice of the alleged defect …. Ramirez v Metropolitan Transp Auth, 2013 NY Slip Op 03314, 2nd Dept, 5-8-13

 

Height Differential Need Only Be More than “De Minimis”

In reversing the trial court and granting summary judgment to the plaintiff, the First Department noted that a “risk arising from a significant elevation differential” within the meaning of Labor Law 240(1) need only be based on a “height differential” that is more than “de minimis:”

While the record did not specify the height, the uncontroverted evidence shows that the steel beams fell a short distance from the top of the A-frame cart to plaintiff’s leg. Given the beams’ total weight of 1,000 pounds and the force they were able to generate during their descent, the height differential was not de minimis (see McCallister v 200 Park, L.P., 92 AD3d 927, 928-929 [2d Dept 2012] [elevation differential was within the scope of the scaffold law when a scaffold on wheels fell on the plaintiff who was at the same level as the scaffold, and it traveled a short distance]; Kempisty v 246 Spring Street, LLC, 92 AD3d 474, 474 [1st Dept 2012] [an elevation differential cannot be considered de minimis when the weight of the object being hoisted is capable of generating an extreme amount of force, even though it only traveled a short distance]; see also Wilinski v 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1, 10 [2011] [recovery was permitted under the scaffold law when metal vertical pipes, on the same level as the plaintiff, toppled over on him]; Runner v New York Stock Exch., Inc., 13 NY3d 599 [2009]). Marrero v 2075 Holding Co, LLC, 2013 NY Slip Op 03160, 1st Dept, 5-2-13​

 

Injury When Stepping Off a Ladder Not Actionable under Labor Law 240(1)—Injury Not Related to the Need for the Ladder

Plaintiff was injured when he stepped from a ladder onto a hose and grain dust.  The Fourth Department determined Supreme Court erred when it denied summary judgment to the defendant in a Labor Law 240 (1) action because “plaintiff’s injury resulted from a separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance…”.  Smith v E E Austin & Son, Inc, CA 12-01554, 266, 4th Dept, 4-26-13

 

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Class Certification in Landlord-Tenant Action Upheld

The First Department upheld Supreme Court’s grant of class certification in an action alleging defendant landlord charged market rents while accepting J-51 [tax incentive] benefits.  The First Department wrote:

The issues of when defendant received J-51 benefits, whether defendant deregulated apartments while receiving those benefits, which tenants resided in those apartments during those time periods, and whether defendant wrongfully charged market rents while accepting J-51 benefits are common issues that “predominate,” thereby meeting the commonality requirement of CPLR 902(a)(2)… . The need to conduct individualized damages inquiries does not obviate the utility of the class mechanism for this action, given the predominant common issues of liability … .

Defendant’s counterclaim for rent arrears does not cause plaintiff to be an atypical member of the class. Her claim is typical of the claims of all class members in that each flows from defendant’s alleged unlawful deregulation of apartments while receiving J-51 benefits … . “[T]hat the underlying facts of each individual plaintiff’s claim vary, or that [defendant’s] defenses vary, does not preclude class certification” …. Defendant’s counterclaim does not materially add to the complexity or difficulty of resolving plaintiff’s individual claim, and defendant’s suggestion that plaintiff might be inclined to settle her case to evade liability on the counterclaim is speculative.  Bordern v 400 East 55th Street Associates, LP, 2013 NY Slip Op 02815, 1st Dept, 4-25-13

 

Construction Manager Not Liable Unless Delegated Authority of General Manager

In finding the action against a construction manager should have been dismissed because the construction manager had not been delegated the responsibilities of a general contractor, the Second Department wrote:

“Although a construction manager is generally not considered a contractor responsible for the safety of the workers at a construction site . . . it may nonetheless become responsible if it has been delegated the authority and duties of a general contractor, or if it functions as an agent of the owner of the premises” . ” A party is deemed to be an agent of an owner or general contractor under the Labor Law when it has supervisory control and authority over the work being done where a plaintiff is injured”… . The defendant … made a prima facie showing of its entitlement to judgment as a matter of law by establishing, through the admission of construction documents and agreements and the deposition testimony of the parties, that it had not been delegated the authority and duties of a general contractor, and did not have supervisory control and authority over the work being done … . McLaren v Turner Constr Co, 2013 NY Slip Op 02726, 2nd Dept, 4-24-13

 

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