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Defendant Was Not Plaintiff’s “Special Employer”

In finding defendant was not plaintiff’s (Vasquez’) “special employer” (and therefore could not take advantage of the exclusive-remedy provision of the Workers’ Compensation Law), the First Department wrote:

Defendant’s motion for summary judgment, made on the ground that the complaint is barred by the exclusivity provision of the Workers’ Compensation Law (see Workers’ Compensation Law § § 11, 29[6] …, was properly denied. Defendant maintains that it was Vasquez’s special employer because it hired all building employees, including Vasquez, and was also responsible for firing. However, plaintiff asserts the evidence establishes that defendant was not Vasquez’s special employer. Specifically, the property owner, not defendant, paid and provided benefits to Vasquez. Defendant’s evidence failed to establish as a matter of law that it “control[led] and direct[ed] the manner, details and ultimate result of” Vasquez’s work …, and plaintiff acknowledges questions of fact exist on this issue. If the issue of defendant’s status as a special employer is resolved in plaintiff’s favor, plaintiff is entitled to partial summary judgment on liability on her Labor Law § 240(1) claim. Vasquez v Cohen Bros Realty Corp, 2013 NY Slip Op 02682, 1st Dept, 4-23-13​

 

12 to 15 Inch Drop Not a “Hazardous Opening” and Did Not Trigger Ramp or Stairway Requirement 

The First Department, in this Labor Law 241 (6) action, determined that a 12 to 15 inch drop from the work area to a subfloor did not constitute a “hazardous opening” and did not trigger the “stairways, ramps or runways” requirement (re: the Industrial Code):

Industrial Code (12 NYCRR) § 23-1.7(b)(1) is inapplicable. The record indicates that plaintiff was injured after he stepped off the edge of the work area to the subfloor 12 to 15 inches below, which is not considered a “hazardous opening” within the meaning of 12 NYCRR 23-1.7(b) … .

12 NYCRR 23-1.7(f) is also inapplicable. There is no basis in the record for any claim that the “[s]tairways, ramps or runways” identified in section 23-1.7(f) were required, given plaintiff’s testimony that the subfloor was only approximately 12 to 15 inches below the first floor from which he fell ….  Francescon v Gucci Am, Inc, 2013 NY Slip Op 02470, 9774, 114399/01 590019/02 590139/06 590372/06, 1st Dept, 4-11-13

 

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General Contractor’s Liability for Ice and Snow at Work Site/Criteria for Indemnification of General Contractor

In a common law negligence and Labor Law 200 action, the Second Department explained when a general contractor can be held liable for a dangerous condition.  Here the plaintiff was injured when he slipped on ice and snow at the work site.  The general contractor was seeking indemnification under a contract:

“[A] party seeking contractual indemnification must prove itself free from negligence, because to the extent its negligence contributed to the accident, it cannot be indemnified therefor” …. ” Where, as . . . here, a plaintiff’s injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a general contractor may be liable in common-law negligence and under Labor Law § 200 if it has control over the work site and actual or constructive notice of the dangerous condition'” …. [The general contractor] failed to establish, prima facie, that it lacked control over the work site or notice of the allegedly dangerous condition, thus precluding a finding, as a matter of law, that it was not negligent ….  Mikelatos v Theofilaktidis, 2013 NY Slip Op 02382, 2012-00163, Index No 19488/05, 2nd Dept 4-10-13

 

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Action Under Labor Law Based On Injury On a Ship in Dry-Dock Not Preempted by Federal Maritime Law

A worker on a ship in dry-dock was injured when he fell through an open hole in the floor or deck.  He brought an action pursuant to the Labor Law.  Although the action was within the jurisdiction of federal maritime law, the Second Department held that the state labor law claims were not preempted by general maritime law:

…[T]here is no real dispute that the present action falls within federal maritime jurisdiction … . Contrary to the contention of the defendants third-party plaintiffs, however, the causes of action alleging violations of Labor Law §§ 240(1) and 241(6) are not preempted by general maritime law. Under the circumstances of this case, the application of Labor Law §§ 240(1) and 241(6), which are local regulations enacted to protect the health and safety of workers in this state, will not unduly interfere with a fundamental characteristic of maritime law or the free flow of maritime commerce … . Accordingly, the Supreme Court properly denied that branch of the cross motion of the defendants third-party plaintiffs which was for summary judgment dismissing those causes of action insofar as asserted against the City. Durando v City of New York, 2013 NY Slip Op 02214, 2012-00535, Index No 33753/08, 2nd Dept 4-3-13

 

Absence of “Altering” and Readily Observable Risk Precluded Suit

The First Department determined plaintiff’s fall from a metal roof did not meet the criteria for a Labor Law 240(1) because attaching a temorary sign was not “altering” for purposes of the statute.  In addition the First Department determined the Labor Law 200 and common-law negligence actions should be dismissed because the risks inherent in walking on a pitched metal roof were readily observable.  Bodtman v Living Manor Love, Inc, et al, 9703, 113921/08, 1st Dept 4-2-13

 

Response to Flooding Caused by Storm Not “Routine Maintenance”

The First Department determined that summary judgment should not have been granted in favor of the defendant in a Labor Law 240 (1) action.  Plaintiff was called to address flooding caused by severe weather and fell into an open manhole.  The motion court granted the defendant’s motion for summary judgment finding that plaintiff was engaged in routine maintenance.  The First Department found that a manhole is a “structure” within the meaning of the statute and that there was a question of fact about whether plaintiff was engaged in “repair” or “routine maintenance:”

Whether a particular activity constitutes a “repair” or routine maintenance must be decided on a case-by-case basis, depending on the context of the work … . A factor to be taken into consideration is whether the work in question was occasioned by an isolated event as opposed to a recurring condition. * * * The record here demonstrates that the work performed by plaintiff at the time of his injury was far from routine.  Dos Santos v Consolidated Edison of NY, Inc, 2013 NY Slip Op 02140, 8914, 105861/08, 1st Dept 3-28-13

 

Failure to Wear Hard Hat Does Not Preclude 240(1) Claim

he First Department determined a worker was entitled to partial summary judgment on a 240(1) claim based on a falling pipe striking him in the head.  The fact that the worker was not wearing a hard hat did not raise a triable issue of fact on the 240(1) claim:

The evidence demonstrates that plaintiff, a welder who was working at a power plant that was being constructed, was struck on the head by a pipe that fell from a height of approximately 85 to 120 feet as a result of a gap in a toeboard installed along a grated walkway near the top of a generator in the power plant … . It is undisputed that there was no netting to prevent objects from falling on workers and contrary to defendants’ contention, plaintiff is not required to show exactly how the pipe fell, since, under any of the proffered theories, the lack of protective devices was the proximate cause of his injuries …. Nor is plaintiff required to show that the pipe was being hoisted or secured when it fell, since that is not a precondition to liability pursuant to Labor Law § 240(1) … .

In opposition, defendants failed to raise a triable issue of fact since they failed to show that adequate protective devices required by Labor Law § 240(1) were employed at the site. That plaintiff was wearing a welding hood but not a hard hat does not raise an issue of fact since “[a] hard hat is not the type of safety device enumerated in Labor Law § 240(1) to be constructed, placed and operated, so as to give proper protection from extraordinary elevation-related risks to a construction worker” … . Mercado v Caithness Long Is LLC, 2013 NY Slip Op 02005, 9634, 102473/09, 590277/11, 1st Dept 3-26-13

 

Scaffold, Safety Railing and Cross Braces Are Safety Devices

In affirming the denial of summary judgment to the plaintiff in a Labor Law 240 (1) action based upon plaintiff’s fall from a scaffold, the Fourth Department noted that a scaffold, safety railing and cross braces are safety devices:

We agree with defendants … that the scaffold itself and the safety railing and cross braces on it constitute safety devices, and that the evidence submitted by plaintiff raises an issue of fact whether the safety devices provided by defendants afforded him proper protection, or whether additional devices were necessary … .

Justice Whalen dissented, arguing that, under the circumstances of plaintiff’s work on the scaffold, the safety railing and cross railings were not adequate safety devices. Kuntz v WNYG Housing Development Fund Company, Inc., et al, 1382, CA 12-00986, 4th Dept. 3-22-13

 

Ice and Snow Accumulation of Floor of Building Constituted Negligence as a Matter of Law 

The Fourth Department determined a worker was entitled to summary judgment under Labor Law 241 (6) based on a slip and fall on ice and snow.  The ice and snow had accumulated on the floor of a building where the worker was framing interior walls:

Plaintiff alleged that defendants were liable for his injury pursuant to Labor Law § 241 (6) based on their alleged violation of 12 NYCRR 23-1.7 (d), which concerns slipping hazards arising from, inter alia, ice and snow. It is undisputed that there were in fact accumulations of ice and snow and that [defendant construction company] was made aware of that fact. Defendants presented no evidence in opposition to demonstrate that the floor was reasonably and adequately safe despite the violation (see § 241 [6]), and thus the court properly determined as a matter of law that defendants were negligent. Thompson v 1241 PVR, LLC, et al, 270, CA 12-01485, 4th Dept. 3-22-13

 

Liability of Prime Contractors and Subcontractors Explained

In affirming the motion court’s grant of summary judgment to the defendant prime contractor and defendant subcontractors, the Second Department clearly described the relevant proof requirements for Labor Law 200, 240 (1), 241 (6) and common-law negligence causes of action.  Giovanniello v E W Howell, Co., LLC, 2013 NY Slip Op 01805, 2011-11465, Ind No 26676/09, 2nd Dept. 3-20-13

 

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