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IT WAS FORESEEABLE THAT DIESEL FUMES FROM A BOOM LIFT USED BY PLAINTIFF FOR INTERIOR PAINTING WOULD ACCUMULATE AND CAUSE DIZZINESS RESULTING IN PLAINTIFF’S FALL FROM THE LIFT; PLAINTIFF’S LABOR LAW 240(1) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s Labor Law 240(1) cause of action should not have been dismissed. Plaintiff was spray painting the interior of a factory using a boom lift when he became dizzy and fell from the lift. Plaintiff diesel fumes from the lift accumulated above him, causing the dizziness:

… [I]t is undisputed that plaintiff fell from the lift while it was raised six to eight feet in the air. In support of his motion, plaintiff submitted evidence establishing that his injuries were causally related to the fall from the lift and that plaintiff was using a boom lift that discharged fumes into the factory. Plaintiff also submitted the affidavit of an expert who opined that defendants violated Labor Law § 240 (1) by failing to ensure that the boom lift was ” ‘so constructed, placed and operated as to give proper protection’ ” to plaintiff and by allowing plaintiff to place the boom lift in a position where diesel fumes were likely to accumulate above him and cause dizziness. We conclude that plaintiff thus met his prima facie burden on his motion by establishing that his fall was a “normal and foreseeable” consequence of the placement of the lift, which exhausted noxious fumes too close to plaintiff … .

In response, defendants failed to raise a triable issue of fact whether the hazard of fumes is “of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve [them] of liability” … . Defendants also failed to raise an issue of fact whether plaintiff deliberately unclipped his safety harness, and we note that the issue presents, at best, a question of comparative negligence, which is not a defense to liability under Labor Law § 240 (1) … . Wolfanger v Once Again Nut Butter Collective Inc., 2024 NY Slip Op 01452, Fourh Dept 3-15-24

Practice Point: Plaintiff was using a boom lift for interior painting and alleged that diesel fumes from the lift made him dizzy, causing him to fall. That scenario was not so attenuated from the statutory violation as to constitute a superseding cause of plaintiff’s injury. Plaintiff’s Labor Law 240(1) cause of action should not have been dismissed.

 

A STACK OF DRYWALL LEANING AGAINST A WALL AND PARTIALLY BLOCKING A DOORWAY FELL OVER ON PLAINTIFF’S ANKLE AS PLAINTIFF ATTEMPTED TO MOVE IT; THE LABOR LAW 240(1) AND 241(6) CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT). ​

The Fourth Department, reversing (modifying( Supreme Court, determined the Labor Law 240(1) and 241(6) causes of action should not have been dismissed. A stack of drywall leaning against a wall and partially blocking a doorway fell over onto plaintiff’s ankle when plaintiff and another attempted to move it:

Although the drywall that fell on plaintiff was located on the floor and was not being hoisted or secured, issues of fact exist whether section 240 (1) applies to this case … .

… [The] Labor Law § 241 (6) cause of action insofar … is premised on an alleged violation of 12 NYCRR 23-2.1 (a) (1) … .. Issues of fact exist whether the drywall was stored safely at the construction site and whether the drywall was a material pile that blocked a passageway … . Jesmain v Time Cap Dev. Corp., 2024 NY Slip Op 01444, Fourth Dept 3-15-24

Practice Point: A stack of drywall which was leaning against the wall and partially blocked a doorway fell over on plaintiff’s ankle when he attempted to move it. That scenario presented issues of fact precluding summary judgment in favor of defendants on the Labor Law 240(1) and 241(6) causes of action.

 

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PORTIONS OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROPERLY DENIED AS UNTIMELY; THE PORTION OF THE UNTIMELY MOTION WHICH HAD BEEN TIMELY RAISED BY ANOTHER DEFENDANT WAS PROPERLY CONSIDERED; THE LABOR LAW 241(6) CAUSE OF ACTION PROPERLY RELIED ON INDUSTRIAL CODE PROVISIONS REQUIRING THAT ELECTRICAL POWER BE SHUT DOWN TO PROTECT ELECTRICAL WORKERS (SECOND DEPT).

The Second Department, reversing Supreme Court in this Labor Law 241(6, 200 and common law negligence action, determined; (1) portions of a defendant’s summary judgment motion brought more than a month after the ordered deadline where properly dismissed as untimely; (2) the aspect of the untimely summary judgment motion which had been timely raised in another defendant’s summary judgment motion was properly considered; (3) the industrial code requires shutting down the electricity when worker’s are doing electrical work, therefore plaintiff’s Labor Law 241(6) cause of action should not have been dismissed. Plaintiff was in an aerial bucket working on electrical lines when injured in an explosion:

Absent a “satisfactory explanation for the untimeliness,” constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits … . However, “[a]n untimely motion or cross motion for summary judgment may be considered by the court where a timely motion was made on nearly identical grounds” … . * * *

… [T]he defendants … failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Labor Law § 241(6), which was predicated on 12 NYCRR 23-1.13(b)(3) and (4). 12 NYCRR 23-1.13(b)(3) provides, among other things, that where the performance of the work may bring any person into physical or electrical contact with an electric power circuit, the employer “shall advise his [or her] employees of the locations of such lines, the hazards involved and the protective measures to be taken.” 12 NYCRR 23-1.13(b)(4) requires, in pertinent part, that employees who may come into contact with an electric power circuit be protected against electric shock “by de-energizing the circuit and grounding it or by guarding such circuit by effective insulation or other means” … . These regulations, which refer to the duty of employers, also impose a duty upon owners … . Wittenberg v Long Is. Power Auth., 2024 NY Slip Op 01329

Practice Point: A summary judgment motion brought a month after the ordered deadline may be dismissed as untimely.

Practice Point: A portion of an untimely summary judgment motion which was timely raised by another defendant may be considered.

Practice Point: The industrial code provisions requiring that electrical power be shut down to protect electrical workers supported plaintiff’s Labor Law 241(6) cause of action.

 

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THE EVIDENCE WAS SUFFICIENT TO WARRANT SUMMARY JUDGMENT IN FAVOR OF PLAINTIFF IN THIS LABOR LAW 240(1) FALLING-OBJECT CASE; BRICK WORK WAS BEING DONE ON THE BUILDING ABOVE WHERE PLAINTIFF WAS STANDING AND PLAINTIFF WAS STRUCK BY A FALLING BRICK; THERE WAS NO SAFETY NETTING TO PROTECT AGAINST FALLING OBJECTS (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Manzanet-Daniels, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action in this falling object case. Plaintiff was unloading a truck in a designated “delivery zone” near the building where bricks were being drilled out to accommodate the installation of windows. Plaintiff was struck on the head by a brick which damaged his hard hat and injured his head:

In the context of falling objects, the risk to be guarded against is the unchecked or insufficiently checked descent of the object” … . It is settled law that a plaintiff establishes a prima facie entitlement to liability on a Labor Law § 240(1) “falling object” claim where he shows that he was struck by a falling object, that such object required securing for the purposes of the undertaking, and that the lack of adequate overhead protection failed to shield against the falling of such object and therefore proximately caused plaintiff’s injuries … . * * *

… [A] “… plaintiff’s prima facie case in a Labor Law § 240(1) action involving falling objects is not dependent on whether the plaintiff observed the object that hit him. . A plaintiff is not required to show the exact circumstances under which the object fell, where a lack of a protective device proximately caused the injuries. Further, [the general contractor’s project manager] identified a photograph of the brick that struck plaintiff, stating that the brick in the photo was consistent with the lone type of brick that was used on the faÇade of the building at the time of the incident … . Torres-Quito v 1711 LLC, 2024 NY Slip Op 01279, Frist Dept 3-12-24

Practice Point: The absence of safety netting to protect against falling objects was deemed the proximate cause of plaintiff’s injury from a falling brick in this Labor Law 240(1) case.

 

HERE SLIPPERY PLASTIC SHEETING WAS USED TO PROTECT AN ESCALATOR DURING A PAINTING PROJECT; PLAINTIFF, A PAINTER, SLIPPED AND FELL WHEN HE STEPPED ONTO THE PLASTIC; THE PLASTIC SHOULD BE VIEWED AS A “FOREIGN SUBSTANCE,” LIKE ICE OR GREASE, WITHIN THE MEANING OF THE INDUSTRIAL CODE; IN ADDITION, THE PLASTIC SHOULD NOT BE VIEWED AS “INTEGRAL TO THE JOB” WITHIN THE MEANING OF THE INDUSTRIAL CODE BECAUSE THERE WERE SAFER ALTERNATIVES (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, with a three-judge concurring opinion by Judge Garcia, determined the plastic sheeting placed on an escalator during painting was a “foreign substance” within the meaning the Industrial Code and the sheeting was not “integral to the work” within the meaning of the Industrial Code. Plaintiff was therefore entitled to summary judgment on the Labor Law 241(6) cause of action. Plaintiff was required to stand on the plastic while painting. He slipped and fell as he stepped onto the sheeting. There was testimony that drop cloths or wood panels would be safer alternative coverings:

As to whether the covering’s properties are the type encompassed within the affirmative mandate of 12 NYCRR 23-1.7 (d), because that section specifically lists ice, snow, water and grease, the catchall reference to “other foreign substance” includes those substances that share a quality common to the enumerated items. The listed items are, by their nature, types of material that are slippery when in contact with an area where someone walks, seeks passage, or stands, and, when the substance is present, would make it difficult if not impossible to use the work area safely, necessitating one of the affirmative mitigating measures set forth in section 23-1.7 (d) as a means to provide safe footing. The plastic covering used here similarly made [plaintiff’s] work area slippery upon contact, with the result that [plaintiff] could not traverse the plastic-covered escalator without risking a fall. * * *

… [T]he use of some cover was integral to [plaintiff’s] assignment to paint around the escalator. But that does not mean that any cover used—even one that was inherently slippery—was necessarily “integral,” particularly where a safer alternative would have accomplished the same goal. The plastic covering that was placed on the escalator was not integral to the paint job because it made [plaintiff’s] work area slippery, creating one of the hazards that the cover was intended to avoid. … Defendant was in a position to avoid this danger because … there were alternative coverings—drop cloths and wood panels—that were familiar, previously-used options that would have achieved the goal of protecting the worker from injuries caused by a slipping hazard and also protected the escalator from possible damage. Bazdaric v Almah Partners LLC, 2024 NY Slip Op 00847, CtApp 2-20-24

Practice Point: A prohibited “foreign substance” within the meaning of the Industrial Code can include slippery plastic sheeting (here used as a drop cloth during a painting project). Therefore requiring workers to stand or walk on slippery plastic sheeting can be a violation of the Industrial Code, triggering Labor Law 241(6) liability.

Practice Point: Because there were safer alternatives, the slippery plastic covering was not “integral to the job” within the meaning of the Industrial Code.

 

THE FACT THAT PLAINTIFF SLIPPED AND FELL DOWN A PERMANENT CONCRETE STAIRWAY DID NOT REMOVE THE INCIDENT FROM THE REACH OF LABOR LAW 240(1); PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (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 ordered to carry a 200 pound mold up a concrete stairway. He slipped on concrete debris and fell down the stairs. The fact that the concrete stairway was a permanent structure (as opposed to a scaffold or ladder, for example) did not remove it from the reach of Labor Law 240(1):

Contrary to defendants’ contention, the fact that the staircase on which plaintiff fell was constructed as a permanent structure does not remove it from the reach of Labor Law § 240(1) .. . Because plaintiff’s foreman instructed him to work on an elevated work platform—namely, the stairway—defendants were required to provide plaintiff with an adequate safety device to carry the staircase mold up the stairs. Defendants failed to do so, and the absence of a safety device was a proximate cause of plaintiff’s injuries. At the time of his fall, plaintiff was following his foreman’s instructions to manually carry the mold up the stairs, and thus, he was not the sole proximate cause of the accident … . DaSilva v Toll GC LLC, 2024 NY Slip Op 00862, First Dept 2-20-24

Practice Point: Labor Law 240(1) can apply to a fall from a permanent concrete stairway. The statute does not apply exclusively to temporary structures like scaffolds, for example.

 

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A RETROCESSIONAL INSURER WHICH PAID OUT A SETTLEMENT ON BEHALF OF THE INSURED IN THE UNDERLYING LABOR LAW 240(1) LADDER-FALL CASE, IS ENTITLED TO BRING A LEGAL MALPRACTICE ACTION AGAINST THE LAWYERS FOR THE INSURED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, determined a retrocessional insurer (the reinsurer of a reinsurer) can maintain a legal malpractice claim against lawyers representing the insured in an underlying Labor Law 240(1) (ladder-fall) personal injury action. Plaintiff retrocessional insurer, having paid out on a settlement on behalf of the insured has standing to assert a claim for legal malpractice under a theory of equitable subrogation. (The opinion is too complex to fairly summarize here):

In New York, “[w]e recognize at once the fairness of the proposition that an insurer who has been compelled by his contract to pay to or in behalf of the insured claims for damages ought to be reimbursed by the party whose fault has caused such damages and the principle of subrogation ought to be liberally applied for the protection of those who are its natural beneficiaries” … . “As an equitable doctrine in the context of insurance, an insurance carrier, upon payment of a loss becomes subrogated to the rights and remedies of its assured to proceed against a party primarily liable without the necessity of any formal assignment or stipulation” … . Under the same equitable principles, “an insurer which has been compelled under its policy to pay a loss, ought in fairness to be reimbursed by the party which caused the loss” … . * * *

Where a reinsurer, or retrocessionaire, has paid a claim on behalf of an insured, equitable principles demand that the reinsurer be entitled to equitable subrogation on behalf of the insured. Having pleaded that it was contractually obligated to, and did, pay the majority of the [property owner/general contractor’s] settlement amount in the underlying personal injury action, and that it brings the instant action for legal malpractice as subrogee [of the property owner/general contractor], plaintiff can proceed with this action under the theory of equitable subrogation. Century Prop. & Cas. Ins. Corp. v McManus & Richter, 2024 NY Slip Op 00799, First Dept 2-15-24

Practice Point: Here the retrocessional insurer paid out a settlement on behalf of the insured in an underlying personal injury action. The retrocessional insurer was entitled to bring a legal malpractice action against the lawyers for the insured.

 

THE BED OF A VAN IS NOT AN ELEVATED WORK SURFACE FOR PURPOSES OF LABOR LAW 240(1) (FOURTH DEPT).

The Fourth Department noted the the bed of a van is not considered an elevated work surface for purposes of Labor Law 240(1):

Plaintiff and defendant’s principal moved the loaner jack to the edge of the van bed in preparation for lifting the device onto a four-wheeled cart. Plaintiff was injured when he and defendant’s principal lifted the loaner jack to place it onto the cart. * * *

The bed of a truck or similar vehicle does not constitute an elevated work surface for purposes of Labor Law § 240 (1) … , and the protections of Labor Law § 240 (1) do not apply where a plaintiff is injured while unloading equipment from the bed of a vehicle … . Inasmuch as there is no dispute that plaintiff’s injury occurred as he helped lift the loaner jack from the bed of defendant’s vehicle, the court properly determined that Labor Law § 240 (1) does not apply. Triest v Nixon Equip. Servs., Inc., 2024 NY Slip Op 00714, Fourth Dept 2-9-24

Practice Point: Here the Fourth Department held that the bed of a van was not an elevated work surface for purposes of Labor Law 240(1).

 

PLAINTIFF FELL THROUGH AN OPENING IN THE FLOOR WHEN THE PLYWOOD COVERING THE OPENING SHIFTED; 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’s motion for summary judgment on the Labor Law 240(1) cause of action should have been granted. Plaintiff fell through an opening in the floor when the plywood covering the opening shifted:

While [defendants] argue that plaintiff was the sole proximate cause of his accident, that defense is inapplicable here, since “if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it” … . Their argument that there was no violation in that the opening, which had no railings or other affixed barricades, was adequately protected by the sheet of plywood, is unavailing … . Similarly, their claim that an unattributed statement in plaintiff’s … accident report that he was lifting wood at the time of the accident implies that he intentionally removed the plywood himself does not create a question of fact … . The argument that plaintiff should not have been working in that area is contradicted by the scope of his employer’s contract, photographs, and his coworker’s testimony. In any event, it is irrelevant and would constitute, at most, comparative negligence, which is not a defense to a Labor Law § 240(1) claim … . Devlin v AECOM, 2024 NY Slip Op 00673, First Dept 2-8-24

Practice Point: A fall through an opening in the floor which was inadequately protected by a sheet of plywood warranted summary judgment on plaintiff’s Labor Law 240(1) cause of action.

 

QUESTIONS OF FACT ABOUT WHETHER REPLACING A WATER HEATER CONSTITUTED A REPAIR AS OPPOSED TO MAINTENANCE AND WHETHER AN ELEVATION-RELATED HAZARD WAS INVOLVED IN MOVING THE WATER HEATER WITH A HAND TRUCK PRECLUDED DISMISSAL OF THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined replacement of a 700 pound water heater which involved moving it with a hand truck raised questions of fact about the applicability of Labor Law 240 (1):

Plaintiff’s evidence * * * raised triable issues whether the day-long work that involved multiple workers to replace a 6-foot tall, 30-inch diameter water heater, weighing, by some estimates approximately 700 pounds, constituted a repair within the meaning of Labor Law § 240(1), as distinguished from routine maintenance … . Defendants did not offer proof, apart from conclusory statements, as to the cause of the water heater’s breakdown other than that the mechanism was leaking and no longer functioning. Defendants offered no specific proof that the water heater’s failure was due to normal wear and tear of particular parts or of its system itself. Triable issues were also raised as to whether an elevation differential existed such that the weight of the water heater, as it was strapped to the hand truck, created a hazardous gravitational force which devices enumerated in Labor Law § 240(1) were meant to protect against … . Rodriguez v Fawn E. Fourth St. LLC, 2024 NY Slip Op 00690, First Dept 2-8-24

Practice Point: There were questions of fact whether replacing a water heater was a “repair” and whether moving the 700-pound water heater on a hand truck was an “elevation-related” hazard within the meaning of Labor Law 240(1).

 

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