NEW YORK LABOR LAW: AN OVERVIEW

Purpose: For over 100 years, New York has recognized the unique hazards faced by workers engaged in construction and certain other forms of manual labor. To provide "adequate protection to workmen" engaged in these dangerous occupations, New York has enacted several laws intended to prevent accidents on the work site. These laws are sometime referred to as the "safe place to work statutes." Among the most notable are Sections 240 and 241 of New York's Labor Law. These statutes have been held to impose an absolute, non-delegable duty on all owners, their contractors and agents. This means that owners of the property where accidents occur are absolutely liable to the injured worker, even if their only involvement is simply to allow the work to occur. The responsibility to comply with these safety rules is not dependant upon whether or not they control the workers' activities; it is simply a matter of whether their name is on the deed to the property where the accident occurs. Responsibility has been imposed even upon property owners who have given an easement, for instance, to a utility company under which the utility company can enter upon the property and perform work at anytime without further permission from the owner. Even owners who have leased the entire property to a tenant who agrees to undertake all responsibility for the property will still be liable for the tenant's failure to provide workers on the property with appropriate safety devices, since the statute is not based upon control over the work but ownership of the property.

Eligibility to collect Workers' Compensation is not affected by a claim brought against an owner under these statutes. A worker is able to collect Workers' Compensation benefits from his/her employer and still bring a personal injury claim against the owner of the property or any of the owner's contractors or agents. There is no requirement that the worker choose between worker's compensation benefits or a personal injury lawsuit. Thus, a handyman who falls while cleaning snow from the roof of a Troy, New York, building can collect his workers' compensation benefits and still recover the full extent of his damages from the owners of the property.

Protects not just New York workers but anyone from another state or country: The law applies to all workers who are injured in accidents which occur within the geographical borders of New York, even if the worker or his employer are residents of another state. This means that a Massachusetts roofer who falls from a building he is working on in Newburgh, New York, may collect his Massachusetts compensation benefits and still bring a claim against the owner of the building.

Undocumented alien workers: have been held to be protected by this statute and to be eligible to receive damage awards representing lost wages despite not having a green card. Whether the measure of lost wages is to be determined on a wage scale in this country or on a scale of wages paid in the plaintiff's native country is to be decided by the jury based upon all the evidence presented. Balbuena v. IDR Realty, LLC, 6 N.Y.3 338 (2006).

Parties responsible: all owners, contractors and agents: Anyone who has an ownership right (joint or co-tenants, lessee, easements holders, licensees, contract vendees, etc.) must comply with these statutes. The statutes also requires any party who initiates the work, such as a tenant who remodels a leasehold, or a grantee of an easement who enters property to repair a broken water main, to comply with the requirements of these laws. Contractors include general contractors, subcontractors, sole proprietors, independents, or others who have been assigned, or who have taken on, the obligation to perform the work even if they delegated it to another before the injury occurred. The only exceptions are owners of 1-2 family residences, and architects and engineers who do not direct or control the work.

Non-delegable/vicarious liability: Before these statutes were enacted, New York, like many other states, would allow an owner or contractor to avoid liability if they delegated the responsibility, by contract or otherwise, to another and no longer controlled the work giving rise to the injury. Since it was the plaintiff's own employer who generally controlled the injury-producing activity, the plaintiff was left without any remedy except for his/her workers' compensation benefits. Sections 240 and 241 were enacted to prevent this avoidance of liability, thereby creating a non-delegable duty to comply with these statutes. No longer can the defense of "lack of control" defeat liability no matter what form the argument takes (i.e., lack of: expertise, knowledge of the work or unsafe condition, financial or geographical inability). The duty imposed by these statutes results in vicarious liability upon all owners and their contractors.

Absolute duty: Because these statutes impose a statutory obligation upon defendants, the duty to comply cannot be avoided or diminished by pointing to the worker's own negligence or culpable conduct. Comparative negligence is not a defense no matter how much at fault the worker is. For example, if an owner contracted directly with a painter to paint a water tower and the painter, who has no employees, does all the work himself, falls from his own ladder when it breaks while he is standing on it, the owner of the property will still be responsible for failing to provide an adequate ladder. This will still be true even when the contract required the painter to comply with the Labor Law and to indemnify the owner for any damages caused by the plaintiff's actions. The owner is absolutely liable to the worker and cannot use the worker's own fault or the contract to defeat, or even diminish, the recovery to which the worker is entitled.

Summary Judgment decisions are the norm: Sections 240 and 241 are strict liability statutes. All the worker need show is that the statute was violated, and that the violation was a substantial factor in causing injury to the worker. Fault or negligence of the defendant is not an element. Therefore, the vast majority of these claims never reach trial and are resolved upon motion. As long as the worker can show the statute was violated, and the violation caused harm, the worker will be granted summary judgment, even if the worker is the only one with first hand knowledge of the facts. This is not a fault basis law. It is a law that requires the owner and their contractors to compensate the worker when an injury occurs, whether they are at fault or not in causing the accident.

Unwitnessed Accidents
In general, motions for summary judgment should not be granted when the movant is in sole possession of the critical facts. However, this principal does not usually apply to statutory causes of action such as Labor Law §240(1). Even when the accident is unwitnessed, denial of the summary judgment motion is proper only when the defendant can legitimately place the plaintiff's credibility in issue on a necessary element of fact. Groves v. Land's End, 80 N.Y.2d 978. Landry v. DiSarro, 149 A.D.2d 859. In order to defeat the motion, the defendant must produce some facts that will support such a finding. Another method of placing the plaintiff's credibility at issue is to demonstrate that the plaintiff has given different versions of the accident (i.e., his report to the Workers' Compensation Board, statement given to the police or OSHA, his doctor or at a hospital, have not been consistent, or there are inconsistencies among descriptions in the complaint, bill of particulars, EBT, or an affidavit supporting the summary judgment motion).

Details of Labor Law §240(1)
The Statutory Language of §240(1):
"All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, 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."

History & Evolution
The origins of Labor Law §240 can be traced to Chapter 314 of the Laws of 1885, which made the failure to provide scaffolding, etc., a misdemeanor for a person employing or directing another in performing labor on a structure. It was first titled as §18 of the Labor Law.

Over the past 100 years, the legislature has amended the statute several times. Each amendment was designed to increase either the scope of the statute or the protection afforded to workers. In 1921, Labor Law §18 was renumbered §240 and cleaning and pointing work was added as activities covered by the statute [L. 1921, Ch. 50]. It was under this same amendment that the statute was expanded to become more than "just the scaffolding law." It now required that workers be provided with slings, hangers, blocks, pulleys, braces, irons, ropes and other safety devices.

In 1948, the Court of Appeals decided Koenig v. Patrick Const. Corp., 298 NY 313, which held that the statute imposed a flat and unvarying duty to protect workmen against hazards of using faulty or inadequate equipment. Since the duty was not dependent upon the negligence of the employer, contributory negligence could not be a defense to a violation of this section. If the employer could avoid this statutory duty by pointing to the concurrent negligence of the injured worker in using the equipment, the beneficial purpose of the statute might well be frustrated and nullified. Koenig, 298 NY 313.

In 1969, the legislature again amended §240 by requiring that all contractors and owners and their agents shall comply with the statute [L. 1969, Ch. 1108]. Since this amendment, the courts have determined that the statute imposes first instance liability upon all contractors and owners, as well as their agents (See, Kelly v. Diesel Const. Div. 35 N.Y.2d 1 (1974)) and that this first instance liability cannot be escaped by delegating the responsibilities to other contractors or subcontractors. Rocha v. State of New York, 45 A.D.2d 633 (3rd Dept. 1974). Section 240 was intended to place ultimate responsibility for safe building practices on property owners and contractors and not upon construction workers who are scarcely in a position to protect themselves from accidents. Lombardi v. Stout, 80 N.Y.2d 290 (1992).

The duty to comply with the statute is non-delegable and actual control or supervision by the owner or general contractor is not required to find them liable. Haimes v. NY Telephone Co., 46 N.Y.2d 132 (1978). In Haimes, Judge Fuchsburg presents a thorough and informative analysis of the development of Labor Law §240. By way of Legislative Amendment in 1962, the teeth of Labor Law §240 were extracted. The 1962 Amendment came to be construed as requiring an owner or general contractor to have actually exercised control or supervision over the task causing the injury before liability would attach under §240. To correct this evolution of case law, in 1969 the Legislature essentially reenacted the pre-1962 version of §240 (L.1969, Ch. 1108, § 3) with the encouragement of organized labor.

Liability is mandated against an owner or contractor who fails to provide appropriate safety devices, regardless of what the terms of the contract provide or what the custom and practice in the construction industry may be. When the evidence establishes the absence of any safety devices at the work site, §240 has been violated. Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513 (1985).

Purpose
Section 240 affords protection to workers engaged in construction and certain other types of activities who are required to work at heights. Subdivision 1 of this section requires that "all contractors and owners, and their agents" provide scaffolding, hoists, ladders, etc., and other devices to protect workers engaged in the erecting, demolishing, repairing, altering, painting, cleaning, or pointing of a building or structure. Owners of one and two-family dwellings are excluded, unless they exercise some control over the work. Professional engineers, architects and landscape architects are also exempted from the requirements of the statute as long as they do not control or direct the work. Subdivision 2 requires that scaffolding over twenty feet high must have a safety rail at least 34 inches above the floor of the platform. It also requires that the scaffolding be fastened to avoid swaying. Subdivision 3 requires that scaffolding must be able to bear a weight four times that which will be placed on the scaffold when in use.

The Law of Gravity: Rocovich v. Con. Ed., 78 N.Y.2d 509.
In November of 1991, the Court of Appeals decided the case of Rocovich v. Con. Ed., 78 N.Y.2d 509 (1991). This decision established that before the statute can be applied, there must exist an elevation differential. This differential can occur either:

1. Where there is a difference in height between the worker and a level below the worker; OR
2. Where there is a difference in height between the worker and materials being hoisted or secured above the worker. Rocovich.

Because the language of §240(1) does not set a minimum height which must be achieved before the statute must be complied with, the Court noted that height alone may not be used as the sole criteria for determining when the statute will apply.

Special Hazards Require Exceptional Protection: Ross v. Curtis-Palmer, 81 N.Y.2d 494 (1993)
In Ross v. Curtis-Palmer, 81 N.Y.2d 494 (1993), the Court of Appeals "expanded" upon its holding in Rocovich. In Ross, the Court went on to require that the worker's injury must have a direct connection to the dangers posed by the risks associated with gravity before the defendant can be held liable. Thus, the injury must be directly caused by the forces of gravity, not just connected to gravity in some tangential way.

The special hazards that require the exceptional protection of this statute do not encompass all perils that may be connected in some tangential way with the effects of gravity, but is restricted to specific gravity-related accidents such as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. Ross, supra.

The Court in Ross summarized its analysis of Labor Law §240 by stating that the statute "...was designed to prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protective devices provided proved inadequate to shield the injured worker from harm directly flowing from this application of the force of gravity, to an object or person."

What Type Of Harm Is Related To The Forces of Gravity? Gordon v. Eastern Railway Supply, 82 N.Y.2d 555
In 1993, the Court of Appeals decided Gordon v. Eastern Railway Supply, 82 N.Y.2d 555 (1993), which gave us a different view of those injuries which are to be considered "directly related to the forces of gravity." Mr. Gordon was injured when he fell from a ladder while sandblasting a railroad car. Important to the understanding of the court's decision is the fact that Mr. Gordon's injuries were caused by the sandblasting gun, which malfunctioned and continued to operate after the plaintiff fell to the ground, causing severe facial abrasions. Apparently, the sandblaster had a defective trigger mechanism which allowed it to continue to operate after the plaintiff lost control of it during the fall. The court addressed several issues involving Labor Law §240(1). All were decided in the worker's favor. The court determined:

1. 240 applies not just to work in a building but to any manmade structure such as a railroad car.

2. The property owner where the accident occurred was liable, even if it had leased the property to plaintiff's employer and exercised no supervision or control over its lessee's operation.

3. The property owner where the accident occurred was liable under §240 even though the railroad car was an independent (and mobile) "structure." The presence of the rail car on the property was a "direct result" of the owner's actions, establishing a basis for the owner's liability.
4. Despite the fact that Mr. Gordon had been repeatedly instructed to use a scaffold, and not a ladder, did not excuse the owner from responsibility for the accident, because mere instructions to use a safety device, or to be careful, do not amount to compliance with the statute. Defendant must show that the safety device was actually provided and that it was available at the immediate work site.

5. Defendants were found liable despite the fact that Mr. Gordon's most significant injury was caused by the sandblasting gun and not from the direct application of the force of gravity. The court held that since Mr. Gordon was performing his work at an elevated position, subjecting him to the risk of injury as a consequence of the forces of gravity, it was incumbent upon the defendants to provide him with appropriate safety devices. The ladder did not serve its core objective of preventing the plaintiff from falling. The defendant's failure to provide appropriate safety devices was a substantial cause leading to plaintiff's fall and subsequent injuries. Although the injuries were directly caused by the malfunctioning sandblasting gun, it was nonetheless a normal and foreseeable consequence of defendant's ultimate failure to provide appropriate devices to prevent the fall.

In October of 2003, the Court of Appeals in Robert Striegel v. Hillcrest Heights Dev. Corp. 100 N.Y.2d 974 800 N.E.2d 1093, 768 N.Y.S.2d 727 (2003), clarified what type of injury is covered by Labor Law §240(1). Striegel, a roofer, was laying down felt and shingles to the roof of a house under construction. While walking along the ridge of the roof, with a roll of felt on his shoulder, he slipped and as his body twisted he heard a "loud crack" from his back. After sliding some 15-20 feet down the roof to its edge, his pants caught onto several protruding nails which ultimately prevented him from falling to the ground below. The court determined that Striegel had not been provided with any safety devices whatsoever which resulted in his fall from the top of the roof all the way down to the eaves, a distance of approximately 15-20 feet. Safety devices would have prevented him from falling as he did and that "the application of §240(1) does not hinge on whether the worker actually hit the ground." The court specifically rejected the defense argument that only those injuries caused by the plaintiff's collision with the ground below are injuries recoverable under §240(1).

When does a falling object which strikes the worker come within the terms of Labor Law §240(1): Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259
In May of 2001, the Court of Appeals rendered its decision in Narducci v. Manhasset Bay Associates and Capparelli v. Zausmer Frisch Associates, 96 N.Y.2d 259 (2001), which identified the outer limits of §240's application to the falling object theory of recovery. Narducci was injured while he was standing on a ladder, removing a window frame from the front of a building when a large piece of a glass from an adjacent window fell upon him, causing a severe laceration to his arm. Capparelli, an electrician, was injured while he was standing on the fourth step of an 8-foot step ladder installing an electrical light fixture when it fell, cutting his right hand and wrist. In both cases, the workers did not fall from their position upon their ladders. Stating that liability under §240 is contingent upon the existence of a hazard contemplated by the statute, the Court of Appeals, quoting from Rocovich v. Con. Ed., 78NY 509, stated that §240(1) applies to falling objects only when the falling object is related to a significant risk inherent in the elevation at which materials or loads must be positioned or secured. Therefore, a plaintiff must establish that the object fell while the object was being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute. It is not sufficient for the plaintiff merely to establish that he may have been performing work at an elevated height and that the injury could have been avoided by using a different type of safety device. The Court determined that the hazard posed by working at an elevation was the danger of falling. The danger of being struck by a falling object while standing on an otherwise safe work platform is a different risk, which arises from different construction practices. The hazard from one type of activity (i.e.:, safety devices to protect workers from falling) cannot be transferred to create liability for a different type of accident.

WHAT TYPE OF WORK DOES §240 COVER?
Frequently, we refer to §240 as providing protection to construction workers, but the statute applies to a much broader range of activities than just construction work. By its own terms, the statute also covers people who perform any type of erection or demolition, repairing or altering, or the painting, pointing, or cleaning of a building or structure. This area of the law has given rise to some very interesting arguments and decisions. Recently, the courts have had to decide when the statute will apply to cleaning activities.

In Bustamante v. Chase Manhattan, 241 A.D.2d 327 (1st Dept. 1997), plaintiff was standing on a ladder while cleaning the tops of partitions within defendant's bank when he fell sustaining injuries. The Court granted plaintiff summary judgment under §240, stating that the statute applies to cleaning of a building. The Court distinguished the cleaning of windows in residential premises, which has been held not to come under the statute, from office-cleaning activities. Certainly, the Court could have justified the opposite result, stating that cleaning of a building for purposes of §240 requires more involved types of activities, such as the washing down of the building walls with chemicals and that it is more than just the routine-maintenance type cleaning of an office building, but it did not.

The Third Department in Vernum v. Zilka, 241 A.D.2d 885 (3rd Dept. 1997), held that the plaintiff who was shoveling snow off the roof of a residential building was cleaning the building for purposes of §240(1). Drawing a distinction between routine domestic cleaning of a home from the type of work plaintiff was performing, the Court rejected the defendant's claim that the work was nothing more than routine maintenance, citing Webster's Dictionary, 9th Ed., which defines cleaning as a ridding of dirt, impurities, extraneous material. The court held that since plaintiff was removing extraneous material, the snow, he was performing cleaning work protected by the statute.

In Chapman v. IBM, 686 N.Y.S.2d 888 (3rd Dept. 1999), plaintiff, employed by a company providing janitorial services to defendant's building, was injured when the conference table he was standing on while cleaning the overhead light fixtures, collapsed. The Court affirmed summary judgment to plaintiff under §240, holding that the plain language of this statute affords safeguards to those engaged in the cleaning of a building, citing Vernum v. Zilka, 241 A.D.2d 885.

Bauer v. Female Academy of the Sacred Heart: 682 N.Y.2d 708 (2002). This case puts to rest 3 significant issues involving the applicability of §240 and §202. The first is the Court's holding that cleaning windows in a non-residential structure is an activity covered by §240(1) even when performed in a non-construction setting. The second is whether §202 of the Labor Law, the window washers statute, is the exclusive remedy for those window washers who fall from an elevated height, thereby precluding a claim under §240(1). After reviewing the legislative history of §202, the second significant holding by the Court was that §202 and §241 are not mutually exclusive. The Court held, "the inescapable conclusion is that while the statutes will sometimes apply to the same fact patterns, they do not in every case. These sections serve different goals, apply to different defendants and have been interpreted differently. The fact that Labor Law §202 coverage may often overlap with Labor Law §240(1) coverage is not a sound reason to imply exclusivity." Third, the Court ruled that §202 does not amount to a per se statutory violation since the 1970 amendment which removed the previous mandate that all owners lessees and those responsible provide anchors on all windows and replaced it with language that required reference to the Board of Standard and Appeals regulations. Following the same reasoning that the Courts have used in ruling that a violation of § 241(6) does not amount to absolute liability, and that the violation of an Industrial Code Rule is "but some evidence of negligence," the same reasoning holds true for §202. Thus, §202 is not an absolute liability provision, but one of comparative negligence. Since the plaintiff's verdict at trial was based on a violation of §202 (the Court having previously dismissed the §240(1) claim) the jury verdict could not be substituted as a violation of §240(1). Therefore, the case was remanded for another trial.

What is alteration work? Joblon v. Solo, 91 N.Y.2d 457 (1998)
In Joblon v. Solo, 91 N.Y.2d 457, the Court of Appeals was called upon to provide some clarification as to what the term "alteration" meant as it is used in the context of §240(1). Joblon, an electrician, was injured when he fell from a ladder while installing a wall clock in an office building. Since there was no electrical outlet, he was required to chisel a hole through a block wall above the door in order to run the electrical conduit from the clock, through the wall, into the adjoining room where an available power source was located. Defendant argued that this did not constitute alteration work and was purely maintenance work. The plaintiff claimed it did constitute alteration work and summary judgment should be granted.

After reviewing several of the cases cited in support of both parties' respective positions, Judge Kaye pointed out that some of the Appellate Division decisions seemed to "(reach) inconsistent results on essentially indistinguishable facts." She noted that while the Second Department held that a plaintiff who was switching a cable television hook up on a telephone was engaged in alteration work and the Fourth Department determined that a plaintiff who was removing a filter on an HBO line attached to a pole was also altering a structure ( Tauriello v. New York Tel. Co., 199 A.D.2d 377, 605 N.Y.S.2d 373 (2d. Dept 4 1993); Dedario v. New York Telephone, Co. 162 A.D.2d 2nd 1001), the Second and Third Departments have concluded that plaintiffs who were installing antennas on buildings were not performing alteration work ( Kasselback v. Liberty, 182 A.D.2d 2nd 741: Borzell v. Peter, 285 A.D.2d 983).

The court reviewed its own prior precedence under §240(1) of the Labor Law and stated that the court wanted to set guidelines for the definition of alteration which would not "ignore our prior holdings." Declaring that it would be much easier to apply a "bright line" definition it was more important to arrive upon a decision that would reflect the legislative intent of §240(1), and to be consistent with prior case law. The Court reasoned that routine maintenance work, of course, was never intended to be covered under the statute. Maintenance work does not result in a significant physical change to the building or its components. Therefore, if the work does result in a substantial physical change it crosses the line from maintenance work to alteration type work protected by §240(1). In order to resolve the issue, the Court held "we conclude that altering within the meaning of Labor Law §240(1) requires making a significant physical change to the configuration or composition of the building or structure. Upon the facts before the court, they concluded that the plaintiff was performing work, which amounted to a significant change to the configuration or composition of the building.

On the same day, the Court decided Weininger v. Hagedorn, 91 N.Y.2d 958. Here, plaintiff was injured when he fell from a ladder while running computer and telephone cables through the ceiling of an existing computer room. He was required to stand on a ladder to access a series of holes punched in the ceiling and to pull wires through canals that had been made above the ceiling. The court found that he was performing alteration work because his task involved "making a significant physical change to the configuration or compensation of the building or structure" and was not a simply routine activity. The matter was sent back for a trial however, upon a finding that there existed an issue on causation.

WORK ASSOCIATED WITH CONSTRUCTION PROJECT: Prats v. Port Authority of N.Y. & N.J., 100 N.Y.2d 878
Often times the court is confronted with a set a facts in which the worker claims the injury occurred while in the course of performing work which is covered by §240. The defendant, however, argues that the specific activity being performed by the worker at the moment of injury is not an activity specifically listed in the statute and for that reason §240 does not apply. Provided certain conditions have been met, the Court of Appeals has held that where the activity being performed by the plaintiff, is an activity which constitutes a necessary and integral part of the overall project, and that project is one governed by §240, then the plaintiff's activities, although not specifically itemized in the statute, are also covered.

In Lombardi v. Stout, 80 NY2d 290 the Court of Appeals was confronted with just such an issue. The defendant argued that the plaintiff was injured while in the process of sawing a branch of a tree from a ladder which he claimed was improperly positioned. The plaintiff fell from the ladder when the branch swung out, knocking him to the ground. Since a tree is not defined as a building or structure (see, Louis-Moors v. Contel of N.Y. 78 N.Y.2d 942, 573 N.Y.S.2d 636) the act of cutting a tree branch is not governed by §240. The plaintiff argued that the statute, being remedial in nature, is to be construed as liberally as possible to achieve this purpose. See, Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 493 N.Y.S.2d 102. Moreover, the plaintiff's act of trimming the tree was part of the larger project which involved substantial renovations to the house located on defendant's property. Finding in favor of the worker, the court held it is well within the intended purposes of the statute to apply its provisions to the tree removal operation performed as part of the overall scope of the house renovations and paving, activities. Subsequent to this decision, several courts referred to this incorporation of plaintiff's specific activities into the broader overall project to be appropriate when the plaintiff's activities are found to be a "necessary and integral part" of the overall project.

Another example of this situation was dealt with in Covey v. Iroquois Gas Transmission System LP, 89 N.Y.2d 952, 655 N.Y.S.2d 854 where the plaintiff was injured when he fell from a backhoe into a trench while he was attempting to replace hydraulic fluid in the backhoe. The defendant argued that the activity the plaintiff was engaged in at the time of the accident was nothing more than routine maintenance work, an activity which is not covered by §240. Although the court acknowledged that the nature of the plaintiff's work, in fact, was a maintenance type activity, it was nonetheless protected under §240(1) "...inasmuch as the work performed by plaintiff was part of the construction of the pipeline" citing Lombardi v. Stout 80 N.Y.2d 290, 590 N.Y.S.2d 55. Here again the Court of Appeals looked to the broader picture as opposed to the specific, immediate activity being performed by the plaintiff at the time of the injury in order to determine whether the plaintiff was a member of the class intended to be protected by the statute. Thus, where all of the other requirements under §240 have been met, i.e.: the plaintiff is a worker, employed on a project which is covered by the statute, the defendants are members of the class of people responsible, the plaintiff's work required him/her to be exposed to an elevation differential and the plaintiff's injuries are a direct consequence of the forces of gravity due to the failure of a safety device, then, plaintiff is entitled to the protection of the statute even if the plaintiff's immediate activity is not otherwise listed in the statute. If one or more of these elements is missing then obviously the plaintiff should not recover under §240. An example would be an individual who sustains an injury from a fall while in the course of inspecting a building or structure. If the inspection is a necessary and integral part of an otherwise covered project, and that project is underway at the time of the plaintiff's injury then the plaintiff would be entitled to recover. However, if the plaintiff is injured while in the course of his inspection work, and construction, excavation, demolition, alteration, repair, pointing, cleaning, etc. has not yet commenced, then plaintiff's activities will not be covered under §240. The simple reason is that the statute does not begin to apply until one of the covered activities listed in the statute has been started. It was just this scenario which arose in Martinez v. City of New York 93 N.Y.2d 322. Here Judge Ciparick held that the plaintiff, who was performing work in the course of inspecting various school buildings in order to catalog the presence of asbestos which needed to be removed, could not be covered under §240(1). A close examination of the facts reveals the reason why. The plaintiff's employer had been hired to perform this survey and upon completion of this work their services were concluded. Only after the final report was filed would the school district then engage in the process of securing funds to perform the removal work, let the project out to bid, retain the services of an appropriate contractor, and only then the project would commence. Thus, at the time the plaintiff sustained his injuries there was no construction, excavation, demolition or repair work which was being performed. His activities of inspection type work was not in and of itself covered by the statute. The plaintiff argued, however, that the inspection work he was performing should be classified as a necessary and integral part of the construction project, since, no construction work could be commenced until he had completed his survey. Judge Ciparick pointed out that since there was no activity covered by the statute taking place at the time of his injury, his fall from the ladder would not be activity governed under §240. Therein, she wrote that to accept the plaintiff's rationale for concluding that his work should be covered by §240(1) of the Labor Law would be to "...improperly enlarge(s) the reach of the statute beyond its clear terms." Unfortunately, as so frequently occurs, some litigants incorrectly synthesized the decision, arguing that the Court of Appeals has now rejected the necessary and integral part test. This is what occurred in Rogers v. C/S Associates Limited Partnership, 708 N.Y.S.2d 524 (3rd Department 6/8/00). Here the plaintiff, a landscaper, was injured when he fell some six feet off of the flatbed truck he was unloading trees from. He argued that his services as a landscaper were part of the overall construction project which was taking place and therefore his activities were to be considered a necessary and integral part of an overall covered project. The Third Department rejected the plaintiff's argument holding that it was "merely fortuitous" that his injury occurred in connection with a construction project and that the Court of Appeals had recently questioned the validity of the necessary and integral part test in the Martinez case. Armed with this decision, several courts began to focus more intently only on plaintiff's immediate task at the moment of injury and to the exclusion of the overall project. Gradually these decisions became more and more assertive in their statements that the Court of Appeals has rejected the integral and necessary part test.

In October of 2003 the Court of Appeals handed down its decision in Prats v. The Port Authority of New York and New Jersey. Here the plaintiff was injured while in the course of his employment for A.W.L. Industries, a company that contracted with the defendant Port Authority to work on the air conditioning system at the World Trade Center Complex. The work involved cleaning, repairing and rehabilitating air handling units in several of the buildings. In order to locate which units need to be repaired, each unit had to be inspected first. The plaintiff, an assistant mechanic, was required to perform various tasks which included repair work on those air conditioning systems which were determined to be in need of repair. This work would include changing bearings, motor sheaves and fly wheels. On the day of the accident the plaintiff was readying an air handling unit for inspection. The plaintiff fell from a ladder as he was assisting a co-worker in preparation for the inspection of the unit. The defendant argued that at the time of plaintiff's injury he was neither engaged in erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure. The work he was performing, according to the defendants, was nothing more than inspection work and therefore the Martinez decision required a dismissal of plaintiff's §240 claim. Judge Rosenblatt, writing on behalf of the court, readily distinguished the Martinez decision noting that Martinez involved separate, sequential phases involving different employees working for different contractors. Here the plaintiff's inspection work was not in anticipation of his employer's work nor did it take place after or before his employer's work was completed. The court characterized the defendant's argument as requiring the court to employ an over literal interpretation of what was taking place at the time of plaintiff's injury. Job titles are not dispositive of whether a specific employee is covered under §240. Here the plaintiff was working as a mechanic and was engaged in the kind of work the Legislature intended to protect under §240(1). The court cautioned against the categorical interpretation of a specific activity noting that the intent of the statute was to protect workers employed in the enumerated acts, even while performing duties ancillary to those acts. "In sum, the question whether a particular inspection falls within §240(1) must be determined on a case-by-case basis, depending on the context of the work. Presumably this decision will require many of the cases listed below to be viewed in a more encompassing light.

REPAIR WORK vs. ROUTINE MAINTENANCE OR MANUFACTURING: Covey v. Iroquois Gas, 89 NY2d 952
Routine maintenance and manufacturing work are not activities covered by the statute. In Jock v. Fien, 80 N.Y.2d 965 (1992), the Court of Appeals held that a plaintiff who fell off of the elevated surface of a mold, while fabricating a septic tank, was performing manufacturing work and was not engaged in any of the enumerated activities listed under §240. However, if a worker is performing maintenance or possibly even manufacturing work, which is also an integral and necessary part of one of the other covered activities, the worker may qualify for the protection afforded by the statute. In Covey v. Iriquois Gas, 89 NY2d 952, the Court held that a worker performing maintenance type work on a backhoe was covered under the statute because it was an integral part of the construction project he was employed on. Repair work, however, is an activity listed as a protected activity under the statute. Distinguishing between repair and maintenance can, therefore, have significant consequences.

PROXIMATE CAUSE
The Court of Appeals held that "we have interpreted the statute as imposing absolute liability for a breach which has proximately caused an injury." Rocovich v. Con. Ed., 78 N.Y.2d 509, 513 (1991). To satisfy the burden of proving a prima facie case, plaintiff must show that defendant's negligence was a substantial cause of the events, which produced the injury. Derdarian v. Felix Contr. Co., 51 N.Y.2d 308, 315 (1980).

The issue of proximate cause has become the main defense argument raised to defeat the plaintiff's 240, as well as the other Labor Law claims. In Zimmer v. Chemung County Performing Arts, 65 N.Y.2d 513, 524 (1985), the Court held that where there is no view of the evidence to support a finding that the absence of safety devices was not a proximate cause of a plaintiff's injuries, a directed verdict in favor of the plaintiff is warranted. If proximate cause is established, the responsible parties have failed, as a matter of law, to "give proper protection."

However, if the defendant can establish that the statute was not violated and that the sole proximate cause of the accident was the worker's own fault, a valid defense to the claim sufficient to defeat summary judgment may exist. Weininger v. Hagedorn, 91 N.Y.2d 958. Weininger was injured when he fell off the stepladder he was working on. Although the facts are not fully discussed in the decision, the record on appeal reveals that plaintiff was standing on the crossbar support between the front and the back of the ladder when it tipped over. The Court of Appeals denied Mr. Weininger's motion for summary judgment finding that an issue of fact existed as to whether his own action was the sole cause of the accident.

In Secord v. Willow Ridge Stables, Inc., 261 A.D.2d 965, 690 N.Y.S.2d 375 (Monroe County Supreme 1/13/99), Judge Siracuse analyzed the principals of proximate cause as it applies to a §240 claim and the limitations of Weininger. The facts of this case were not in dispute. Plaintiff, a carpenter, was installing prefabricated roof trusses on defendant's building. The roof trusses were set into position and stabilized with a 2 x 4, which was nailed into place. Plaintiff was resting on top of one truss, waiting for another to arrive. While so positioned, the trusses suddenly collapsed like dominos causing him to fall 10 to 15 feet and sustain an injury.

Defendant argued that there was an issue of fact as to the cause of the accident sufficient to require a trial citing, Weininger v. Hagedorn, 91 N.Y.2d 958. Judge Siracuse noted that the Court of Appeals and the Appellate Division decision in Weininger fails to point out significant facts of the case: that the plaintiff was standing on the cross-bar of the ladder when the ladder tipped over. Under this unusual set of facts, it makes sense that the Court of Appeals sent the matter to trial for resolution on the issue of causation: did the ladder fail because it was inadequate or defective or improperly placed, or was it solely the misuse of the ladder by the plaintiff? Judge Siracuse pointed out that the plaintiff does not have to exclude all other causes of the accident but only show that the violation was "a cause" of the accident. Unlike the Weininger case, plaintiff Secord had not been provided with any safety devices that would prevent the collapsing of the trusses. Key to this analysis by Judge Siracuse, was his recognition of the principle that there is always something that precipitates the events resulting in an accident. Plaintiff may have tripped, reached for a tool, attempted to help a co-worker, tripped over debris into a hole or, as in this case, a co-worker may have removed the 2x4's supporting the trusses. The statute requires that when something goes awry, the workmen be provided with an appropriate safety device to prevent a fall type injury. What was Mr. Secord given when the 2 x 4 support was removed? Defendants produced no proof to contradict plaintiff's assertion that he was not given anything. Therefore, there was no issue concerning proximate cause under these facts.

As pointed out in the above case, there will always be some preceding event that will precipitate the need for safety devices on the job site. If the defendant fails to provide a safety device to prevent the injury from happening, no matter what the precipitating event is, it can only be a concurrent cause of the worker's accident. Defendant's failure to provide sufficient safety devices will always be another causative factor. Often, the defense argues that the worker's injuries were caused by a superseding event, such as the operator of the vehicle that runs into a scaffold, causing it to collapse. This argument is an attempt to focus the court's attention on what set this chain of events into motion and away from the defendant's failure to provide an appropriate scaffold that was properly positioned or protected so as to prevent vehicles from coming into contact with it. Another illustration occurs when a plaintiff falls from a bridge as a result of a sudden unexpected gust of wind and the defense contends that this accident was caused by an act of God or at least by an unforeseen event beyond their control. Here the defendant seeks to exclude from consideration it's failure to provide safety harnesses or other devices as mandated by the statute, by blaming the plaintiff's injury on an unforeseen event. Upon closer analyses, the precipitating event may have been a causative factor in the plaintiff's injuries but section 240 (1) was enacted to provide the plaintiff with fall protection when the need for it arises, no matter what the cause is. See: Joyce v. Rumsey, 17 N.Y.2d 118; Robinson v. NAB Construction Corp., 210 A.D.2D 2d 86; Van Alstyne v New York Thruway Authority 244 Ad2d 978; Iannalli v. Olympia 190 A.D.2D 2d 775. The logic in Joyce, supra, is flawless:

"No one is ever injured by an unguarded opening. Something must project him into the hole, but that something cannot be more than a concurrent cause of the injury. The statute puts absolute and unconditional liability on the contractor and in favor of the workman who falls through the floor opening which the statute insists must be covered. To hold otherwise would be to deprive the worker of the protection afforded him by the Labor Law. To say that a jury in such a case could bring in a no cause verdict would be to say that the jury can nullify the statute." Joyce v. Rumsey, at 123.

In Rupert Blake v. Neighborhood Housing Services of NYC, Inc. 1 N.Y.3d 280 the plaintiff, Blake, was hired by a homeowner to perform certain construction work at her premises. He was injured when the extension ladder he was upon suddenly retracted and in the process the plaintiff sustained an ankle injury. The extension ladder was owned by Blake and frequently used by him. He set the ladder up and acknowledged that it was steady, had rubber shoes and was in proper working condition. At his deposition he testified the ladder was securely placed and not broken or defective, there was no need to have anyone hold the ladder while he was using it or ascending it. Summary judgment motions were made by all parties, subsequently denied and the case proceeded to trial. At the trial, Blake conceded that he could not identify any defect in his ladder. It was stable and there was no reason to have it steadied during use. He also indicated he was not sure if he had locked the extension clips in place before ascending the rungs. Upon written interrogatories, the jury found that the ladder used by plaintiff was so constructed and operated so as to give proper protection to plaintiff. The court termed this response an inescapable conclusion that the accident happened not because the ladder malfunctioned or was defective or improperly placed, but solely because of plaintiff's own negligence in the way he used it. The plaintiff argued that §240(1) nonetheless required that the jury's verdict should be set aside since the sudden retracting of the ladder, presumably due to the improperly placed extension clips still gave rise to liability since the device, as it was constituted at the time of the fall, did not provide proper protection and it must result in liability even if plaintiff himself owned the ladder and improperly placed it in position before using it. In support of this argument plaintiff relied on Haimes v. New York Telephone Co., 46 N.Y.2d 132. The defense argued that the imposition of liability under the facts of this case, where there was no finding that the ladder was improper, defective, slipped, or was inadequately placed, would result in making owners, agents and their contractors' insurers under the statute.

Retracing the history of §240(1) and the courts decision in Koenig v. Patrick Constr. Corp. 298 NY 313 (1948) which concluded contributory negligence was not a valid defense, did not warrant the imposition of an insurers form of liability. Despite the court having consistently held that a violation of the statute, which violation was a substantial factor in giving rise to the accident results in the imposition of strict liability, the term "strict (or absolute) liability" as used in the context of Labor Law §240 is different than the term as used in other areas of the law (e.g.: blasting activities, the keeping of wild animals, the discharging of waste under the navigation law, strict liability in connection with product liability or liability imposed under the Uniform Commercial Code). Citing from previous decisions, the court noted that they had consistently held throughout the years that not every fall at a construction site results in liability under §240(1). Only those caused by a violation of §240(1) will result in liability. Under the facts of this case the plaintiff produced no evidence to show a violation of the statute, and even after a jury trial no violation was found to have been presented. Without a violation there cannot be liability under §240. Therefore, under the specific facts of this case it can only be concluded that the sole cause of the accident was the plaintiff's misuse of the ladder. "Put differently, an accident alone does not establish a Labor Law §240(1) violation or causation." As stated in Weininger v. Hagedorn 91 NY2d 958 (1998), where a reasonable jury could have concluded that plaintiff's actions were the sole proximate cause of his injury there is no liability under §240(1). Stated in the reverse "it is conceptually impossible for a statutory violation, which serves as a proximate cause of a plaintiff's injury, to occupy the same ground as a plaintiff's sole proximate cause of the injury. Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it. Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation." Blake

The court explicitly reaffirmed its previous holdings that under certain circumstances a violation of §240(1) can be found, as a matter of law, where the safety device collapses or malfunctions, is defective, or is improperly placed. (See Beesimer v. Albany Ave./Route 9 Realty 216 AD2d 853 (3rd Dept. 1995).

BUILDING OR STRUCTURE
By its terms, §240 (1) applies to work being performed on any building or structure. A building or structure is "any production or piece of work artificially built up or composed of parts joined together in some definite manner." Caddy v. Interborough Rapid Transit Co., 195 N.Y. 415, 420 (1909); Lewis-Moors v. Contel of N.Y., 78 N.Y.2d 942 (1991). Telephone (utility) pole is a structure. Tauriello v. NY Telephone, 199 A.D.2d 377 (2d Dept. 1993). Telephone line suspended between poles may be a structure or logical extension of a structure. Garrant v. NY Telephone, 179 A.D.2d 960 (3d Dept. 1992). A railroad car is a structure. Gordon v. Eastern Railway Supply, 82 N.Y.2d 555, 563 (1993). Although a tree is not a structure, tree removal operations in conjunction with a building's renovation is covered under §240 making plaintiff's claim for injuries sustained while sawing tree branch subject to liability. Lombardi v. Stout, 80 N.Y.2d 290, 296 (1992). A burial vault was held to be a structure in Ciancio v. Woodlawn Cemetary, 249 AD2d 86 (1st Dept. 4/98 ).

Although a highway may be a structure for purposes of Labor Law § 241(6), it is not a structure for purposes of Labor Law §240. Dillon v. State of New York, 201 A.D.2d 793 (3d Dept. 1994). In Dillon, plaintiff was injured when thermoplastic splashed in his face as he was preparing to paint edge lines on a newly resurfaced State highway. The Court said that this was not covered, as a highway at a grade is not a "building" or "structure" within the purview of Labor Law §240. Although the Court of Appeals in Mosher v. State of New York, 80 N.Y.2d 286, held that highway repaving would fall within the purview of Labor Law § 241(6), the Third Department stated that was merely due to the unique history of Labor Law § 241(6), and highway construction was not covered under §240.

THE CLASS OF PEOPLE COVERED UNDER §240
In Mordrofsky v. C.V. Development Corp.,76 NY2d 573 the court held that the Labor Law applies only to those who are employed, which means by definition, those people who are "permitted or suffered to work." Thus, the Labor Law does not apply to volunteers, contract vendees, or others who are not workers. While the Court of Appeals has not yet definitively ruled that the worker must be employed as "a construction worker" before these statutes will apply, there are several Appellate Division decisions which have inserted this requirement into the statute.

WHO IS RESPONSIBLE UNDER §240 - OWNERS AND AGENTS
Section 240 applies to all contractors and owners, and their agents who are involved in the "erection, demolition, repairing, altering, painting, cleaning or pointing" of buildings and structures. Owners include fee owners of the property where the construction or other covered activity is taking place, as well as grantors and grantees of easements, persons who contract for construction on the property, and lessees of property who engage the services of a contractor.

Section 240 imposes liability upon "all owners," without regard to encumbrances or degree of control. An owner is liable regardless of whether the owner contracted for the work or benefited from it. Gordon v. Eastern Railway Supply, 82 N.Y.2d 555, 560 (1993); Houde v. H. Hudson Barton, 202 A.D.2d 890, 893 (3d Dept. 1994). In Seemueller v. County of Erie, 202 A.D.2d 1052 (4th Dept. 1994), plaintiff was dismantling a stage at Rich Stadium following a rock concert. Erie County, the owner of the stadium (the premises), and Mountain Productions, Inc., the owner of the stage (a structure), were both held liable under §240.

The Statute imposes a non-delegable duty upon general contractors. Hiames v. New York Telephone Co., 46 N.Y.2d 132. Construction managers hired by the owners to coordinate and supervise construction may be liable regardless of whether the construction managers actually enter into contracts with the various entities performing the construction work. If a construction manager has the duty to control the work giving rise to the violation, it may be held liable under §240. Stark v. Rotterdam Square, 198 A.D.2d 583 (3d Dept. 1993); Kenny v. George A. Fuller Co., 87 A.D.2d 183 (2d Dept. 1982).

Independent prime contractors are not liable under §240 for injuries sustained by workers outside the scope of work of their prime contract. Russin v. Picciano, 54 N.Y.2d 311, 318 (1981). Whether a party (including subcontractor) is an agent for the purpose of imposing labor law liability depends upon the level of the involvement of the party, the particular construction project, and the work which gives rise to the accident. A subcontractor is not responsible for all injuries occurring at the construction site, and is considered an agent of the general contractor only with respect to job site injuries in those areas and activities within the scope of the work delegated to the subcontractor. Only upon obtaining the authority to direct, supervise, and control does a third-party fall within the class of agent under §240. Russin v. Picciano, 54 N.Y.2d 311, 318 (1981). An agent may be held liable if it has the authority to supervise and control regardless of whether it actually did so. Currie v. Scott, 203 A.D.2d 825, 826 (3d Dept. 1994).

What happens if the worker is given a safety device but fails to use it: Recalcitrant Worker Doctrine:
Although the absolute liability provisions of the Labor Law were enacted for the remedial purpose of protecting workers who are exposed to the dangers of gravity (see, Rocovich v. Con Edison, Co., 78 N.Y.2d 509), and as such, the statute is to be liberally construed, it should not be implemented in such a manner as to create a right of recovery not envisioned by the legislature. Blake v Neighborhood Housing Services of NYC Inc., 1 NY3rd 280; Cannata v. One Estate, 127 A.D.2d 811; DaBolt v. Bethlehem Steel Corp., 92 A.D.2d 70). Thus, where a defendant can show that the accident was caused not by reason of the defendant's breach of the statute but solely because the plaintiff has refused to use the safety devices, which were made available to him/her, then the defendant should be able to escape the imposition of absolute liability. Under these circumstances, the cause of the accident would not be the defendant's failure to comply with the statute, but the plaintiff's own refusal to use those devices. This defense was first enunciated in Smith v. Hooker, 89 A.D.2d 361. The defense is premised upon the principle that "the statutory protection does not extend to workers who have adequate safety equipment available to them but refuse to use it." Smith v. Hooker, supra, 366. The Courts have named this causation defense the "recalcitrant worker defense."

For several years after the Hooker v. Smith, supra, decision, most Courts required that there be an affirmative offer of a safety device to the plaintiff and an affirmative refusal by the plaintiff to use the safety device in order to establish the recalcitrant worker defense. By referring to these specific requirements, the Court and litigants could clearly make a distinction between a viable recalcitrant worker defense and simple comparative negligence, which is not a defense to §240. Frequently a defendant would oppose a motion for summary judgment by trying to take whatever facts were available and argue that the plaintiff should be denied the motion on the grounds that he is a recalcitrant worker, even if there was no affirmative offer and affirmative refusal. Inevitably, there began a series of decisions which denied summary judgment to the plaintiff on grounds that the defendant had established a viable recalcitrant worker defense, even where there was no showing of an affirmative offer of a safety device and an affirmative refusal by the plaintiff to use the device. Whether these decisions were founded upon confusion, misunderstanding, or simply the Court's individual frustration with the absolute liability provisions of the labor law, plaintiffs from time to time would be denied summary judgment on less then a sufficient set of facts to establish the recalcitrant worker defense. These decisions in turn gave rise to the more frequent use of the recalcitrant worker argument, leading to more and more decisions, which attempt to enlarge it beyond its original scope. Indeed, there are now several seemingly conflicting decisions not only between the various departments but also among judges within the same court.

The recalcitrant worker defense does not apply where the defendant fails to provide any safety device or where the safety device provided is inadequate or defective.

Before any attempt is made to apply the recalcitrant worker defense to a given set of facts, a clear distinction must be made between whether you are dealing with a situation where the defendant is (1) partially at fault for causing the accident (i.e. defendants failure to provide a safety device is in part to blame for the accident) or (2) where defendant did provide an adequate safety device but plaintiffs refusal to use it was the sole cause of the accident (i.e. sole causation).
When analyzing the case law, only the second situation should result in a bar to a plaintiff's recovery under §240. The reason is that in the first situation the accident was caused, at least in part, by defendant's failure to provide an adequate safety device. Under these circumstances the defendant's breach of the statue must result in the imposition of absolute liability upon the defendant. The plaintiff's actions, even if it amounts to the refusal to use a safety device, can be nothing more than comparative negligence. Since comparative negligence is not a defense to a defendant's violation of the statue, the plaintiff is entitled to judgment, even if the plaintiff was recalcitrant. In the second situation the only cause of the accident was the plaintiff's failure to use the safety device which was provided. Here, the defendant did not breach the statue and the defendant cannot be held liable for the happening of the accident.

This principal has been enunciated by the Court of Appeals in several of its' decisions starting with Stolt v. General Foods Corp., 81 N.Y.2d 918 (1993). Stolt was injured when he fell from a ladder while working on a construction job at a plant owned by defendant General Foods Corp. The ladder plaintiff fell from broke about a week before the accident and the plaintiff had been instructed not to use it unless someone was there to secure the ladder. Disregarding warnings, plaintiff used the ladder without assistance when his supervisor left the area. The court held the mere fact that the plaintiff disobeyed his supervisor's instructions by climbing the ladder did not provide a proper defense against plaintiff's claim under §240. Holding that it was "well settled that the injured's contributory negligence is not a defense to a claim based on Labor Law §240(1) and that the injured's culpability, if any, does not operate to reduce the owner/contractors liability by failing to provide adequate safety devices (e.g., Bland v. Manocherian, 66 N.Y.2d 452, 497 NYS2d 880, 488 N.E.2d 810)." The decision pointed out that plaintiff's injuries were a direct result of the failure by defendant to supply a safe ladder or other devices to give proper protection to the plaintiff. In brief, the accident was caused at least in part by the defendant's failure to comply with the terms of the statue. Turning its attention to the recalcitrant worker defense, the Court held "it has no application where, as here, no adequate safety devices were provided." See, Zimmer v. Shamung County Performing Arts, 65 N.Y.2d 513, 525-526,493 NYS2d 102, 482 N.E.2d 898 [Simmons J. concurring].

In VanAlstyne v. New York State Thruway Authority, 244 Ad2d 978 (4th Dept. 11/19/97), the court rejected defendants argument that plaintiff was a recalcitrant worker and liability should not be imposed because plaintiff's injury from the fall off a girder on a bridge rehabilitation project was caused by claimants failure to "tie off his lanyard on the available static line." The court rejected the argument finding that once plaintiff established that the fall was caused by defendant's failure to comply with the statue "any negligence on the part of the injured worker will not relieve a defendant of its absolute liability." See, Rocovich v. Con. Ed., Co. 78 N.Y.2d 509, 513, 577 N.Y.S. 2nd 219, 583 N.E.2d 932).

Milewski v. Caiola, 236 A.D.2d 320, 654 N.Y.S.2d 738 (4th Dept. 2/25/97) provides another example of this principal. Here the plaintiff disregarded a co-worker's advice that the plank he was laying on, which was across the top of an elevator shaft, was unsafe. Plaintiff fell from the plank, and there was conflicting deposition testimony whether he was wearing his safety harness at the time of the fall and whether he was properly tied off. In affirming S/J the decision pointed out "even if plaintiff could be deemed recalcitrant for not having used the harness, no issue exist that the failure to provide proper safety planking was a more proximate cause of the accident."

1. Mere warnings or instructions are insufficient to establish the recalcitrant worker defense.

No matter how many times a worker is told not to do an unsafe act or to be careful, an otherwise valid §240 claim cannot be defeated by a claim that the plaintiff is a recalcitrant worker. Hagins v. State 81 N.Y. 2d 921. In Gordon v. Eastern Railway Supply, Inc. 82 N.Y.2d 555, the Court, citing Stolt and Hagins, supra, held that "an instruction by an employer or owner to avoid using unsafe equipment or engaging in unsafe practices is not a "safety device" in the sense that plaintiff's failure to comply with the instruction is equivalent to refusing to use available, safe and appropriate equipment" Evidence of instructions alone does not support a recalcitrant worker defense.

2. The defendant must establish that plaintiff has refused to use the safety devices provided.

The simple failure of the plaintiff to use a safety device, even one that has been provided will not be sufficient to raise a valid recalcitrant worker defense. There must be proof that the plaintiff purposefully refused to use it. Gordon v. Eastern Railway Inc. 82 N.Y.2d 555, see also Garcia v. 1122 East 180th Street Corp. AD2d. There must be proof that the plaintiff refused to take advantage of alternative safer means to perform his work or that he refused to use a safety device, which was provided. Tennant v. Curcio 237 AD2d 733; Reed v. State 249AD2d 719; VanAlstyne 244 AD2d 978.

While this rule is fairly simple to recite, its application by various courts have been somewhat less than simple. An example of this appears in Jastrzebski v. North Shore School District, 233 AD2d 677, 637 N.Y.2d 439. In this 3:2 decision, the majority held that the jury's determination that plaintiff acted as a recalcitrant worker was supported by the evidence. Plaintiff had been working on a ladder when his supervisor, instructing him to get off the ladder and to use the scaffold which was erected and in place at the site. The court noted that although plaintiff had indicated his assent to the directive and got off the ladder, he re-climbed the ladder as soon as his supervisor turned his back and began to walk away. Shortly after ascending the ladder a second time, the plaintiff fell sustaining his injuries. The majority refused to apply Gordon v. Eastern Railway, 82 N.Y.2d 555, on the grounds that "implicit in Gordon is that the recalcitrant worker defense has no application where no adequate safety devices were provided... In this case, unlike Gordon, scaffolding had been provided and was available for use by the plaintiff who refused to use it contrary to direct orders to do so." The majority also noted that the defendant in Jastrzebski gave immediate and direct instructions, through plaintiff's supervisor, not to use the ladder. This, the Court felt, was significantly different and distinct from the passive instruction in Gordon to use the scaffold instead of the ladder. Importantly, the majority's decision in Jastrzebski held " there was no evidence in Gordon that the plaintiff had knowingly refused a direct order as the plaintiff in this case had."

The Court went on to say there is nothing in Gordon that requires the plaintiff "to tell his supervisor to his face that he was not going to obey him in order for the defendants to avail themselves of the recalcitrant worker defense." Thus, under the totality of the circumstances, the plaintiff's refusal to use the available safety device could be implied. Judge Bracken, with Judge Krausman concurring, noted that Gordon could not be distinguished as the majority decision purports to do. They argue that in the Gordon case there was no proof that the scaffold plaintiff was told to use was not available for use at the site. They claim that the Appellate Division decision in Gordon, which recites more facts than the Court of Appeals' decision, demonstrates that a scaffold was readily available for plaintiff's use and therefore Gordon required a plaintiff's verdict in Jastrzebski. Here it can be said the majority believed plaintiff's acts spoke louder than any words of refusal.

In January 1996, the Third Department decided Hickey v. C.D. Perry and Sons 223 AD2d 779. There the plaintiff was injured when the 2" x 10"inch plank he was on, stretched over a sluiceway, broke under the weight of his 370 pound body weight. The defendant, in furtherance of its recalcitrant worked defense, submitted that there were ladders supplied, and in place, which were to be used to climb down into the sluiceway so one could walk across the bottom and to the other side and up another ladder. Also, defendants were uncertain why the plank was placed where it was and that the defendant ordered its removal on more than one occasion and that they had removed the plank before to stop workers from using it. The court stated this created a sufficient issue of fact on the recalcitrant worker defense, presumably on the belief that there was sufficient circumstantial evidence that the plaintiff affirmatively refused the safety device provided by defendant (i.e. the ladders). Again, this court inferred plaintiff's refusal to use the ladder by his acts.

Also, in January 1996, the Third Department decided Vona v. St. Peter's Hospital, 223 A.D.2d 903, 636 N.Y.S.2d 218. Vona, a painter who was about to cover the armature of a door at defendant's premises, was specifically directed by one of the defendant's foreman to obtain a stepladder to perform the work. Instead, Vona stacked two five-gallon pails on top of one another and stood on them to reach the top of the door. The Supreme Court denied Vona's motion for S/J, holding that there was a question of fact as to whether Vona was a recalcitrant worker for failing to use the stepladder. The Third Department unanimously held that based upon the proof that there was a stepladder within ten feet of where the plaintiff fell, a jury could conclude based upon the evidence presented, that defendant had provided plaintiff a safety device which was erected and in place (stepladder which was ten feet away) and that plaintiff was aware of this fact (circumstantial evidence that the ladder was within plain view of plaintiff) and that the plaintiff's failure to use the ladder could be construed as an implied refusal to use a plainly visible safety device. Here the court felt that a jury could infer both the act of defendant providing a safety device as well as plaintiff's refusal to use it.

Six months later, in June 1996, the Third Department decided Watso v. Metropolitan, 228 A.D.2d 883, 644 N.Y.S.2d 399 644 N.Y.S.2d 399. Here, the plaintiff was wearing a safety belt with an attached lanyard five feet long. The plaintiff was not tied-off to the safety line, which was erected and in place when he fell from his elevated workstation while welding the floor joists, which were being installed. The defendant argued that the plaintiff's injuries were caused by his refusal to tie-off to the safety line, and therefore he was a recalcitrant worker. Plaintiff argued that the lanyard was only five feet long and that he would not be able to tie-off to the safety line since he was welding in a position eight feet away from the safety line. The defendant offered evidence that the safety line was not taut, but rather loose and capable of being stretched out to the location where the plaintiff was working so that he could tie-off. The Court held that the defendant produced evidence from which a jury could find that the plaintiff, rather than being tied-off to the safety line, purposefully did not do so, and therefore caused his own injuries as a result of being recalcitrant.

Thus, there now seems to be authority at the Appellate Division level that once the defendant establishes plaintiff was provided appropriate safety devices, at least under certain circumstances, the jury may find that the plaintiff purposefully refused to use the devise, so as to spell out the recalcitrant worker defense, based upon circumstantial evidence.

Details of § 241(6) (the "safe place to work" statute): "All areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings, who contract for but do not direct or control the work, shall comply therewith."

Danger to be protected against by § 241(6): A wide variety of dangers such as tripping hazards, electrical dangers, sanitation, work on roofs, collapsing of trenches, insufficient lighting, demolition hazards, dangers associated with power-operated machines and equipment.

Non-delegable vicarious duty: All contractors and owners and their agents must comply with the provisions of the New York State Industrial Code which can best be described as New York's forerunner to OSHA. There are numerous provisions that are intended to insure a safe place to work. As with Labor Law §240(1) this statute also imposes an absolute, non-delegable duty on all owners and their contractors. Defendants are vicariously liable for the contractor's failure to comply with the Industrial Code even if they do not control the plaintiff or his work.

Comparative negligence is a defense to a § 241(6) cause of action: Because the provisions to be complied with are not found within the statute itself and reference to an administrative rule required, New York courts have held that a violation of one of the Industrial Code Rules and Regulations does not result in a per se, statutory liability. The plaintiff's comparative negligence can be used to reduce the amount of recovery. But, since New York is a "pure" comparative negligence state, so long as plaintiff's negligence is less than 100%, s/he is entitled to a recovery.

Work covered by the statute: Section 241(6) covers a wide variety of activities including building, erection, demolition, repairing, altering, painting, cleaning or pointing of a building or other man made structure. In Nagel v D & R Realty Corp.,99 NY2d 98 however, the Court of Appeals ruled that 241(6) does not apply to purely maintenance work even though 12 NYCRR 23-1.4(b)(13) defines construction work to include maintenance activities.

WHEN DOES § 241(6) APPLY? Ross v. Curtis-Palmer, 78 N.Y.2d 509
Plaintiff, a welder, sustained a back injury while he was positioned on a plank stretched ever the top of a shaft which was 40-50' deep. The area to be welded was approximately 4-6" below the level of the platform. Plaintiff asked to use a ladder, but was required to use the platform instead. In order to complete the work, plaintiff alleged, he was required to contort his body to prevent his falling off the platform. After maintaining this position for over 2 hours, plaintiff experienced pain in his back, which subsequently resulted in surgery and a claim of permanent disability.

Defendants moved for summary judgment seeking a dismissal of both the §240(1) and § 241(6) claims. The Third Department, by a divided court, refused to dismiss the §240 claim believing that Rocovich v. Con Ed, 78 N.Y.2d 509, only required plaintiff be exposed to an elevation-related risk which, in turn, would require adequate protective devices. If injury was then caused by failing to provide the device; the statute would be violated, regardless of whether the injury was directly caused by the fall or falling objects. The Third Department, however, dismissed the § 241(6) claim alleging that plaintiff's allegations were too general and did not refer to a specific Industrial Code Rule allegedly violated by defendants.

Although acknowledging that plaintiff's injury was, "related to the effects of gravity," the Court of Appeals unanimously held, "the injury... is not the kind of harm that is typically associated with elevation related hazards." Clarifying its holding in Rocovich, the Court stated that the legislative intent was to provide "exceptional protection" for workers against the "special hazards" that arise from working at elevated positions.

Equally as important, the Court noted plaintiff's § 241(6) claim must fail on the basis that this statute requires a showing that defendant violated a "specific, positive command."

Noting that § 241(6) composes a non-delegable upon owners and contractors, without regard to direction and control, this statutory violation means something more than a mere common law violation. Labor Law § 241(6) is, in a sense, a hybrid, since it reiterates the general common law standard of care and then contemplates the establishment of specific detailed rules through the labor commissioner's rule-making authority. Since §200 has already been interpreted as a codification of common law standards, § 241(6) requires something more.

Plaintiff alleged that defendant failed to comply with 12 NYCRR 23-1.25(d) and 23-1.49(a). The Court of Appeals concluded that these allegations are not sufficient to give rise to a § 241(6) claim. These provisions add nothing to the general common law rule requiring a safe place to work. To permit a plaintiff to use these broad, non-specific regulatory standards as a predicate for a § 241(6) claim which imposes a non-delegable duty even on non-supervising owners and GCs, would seriously distort the scheme of liability. To permit the same would, in effect, allow every common law unsafe place to work claim to be couched in terms of § 241(6). Therefore, we hold that, for purposes of the non-delegable duty imposed by Labor Law § 241(6) and the regulations promulgated there under, a distinction must be drawn between provisions of the industrial code mandating compliance with concrete specifications and those that establish general safety standards.

Since the Ross case, many decisions have stated, in general sense, that the there must be a concrete or specific Industrial Code Rule 23 which has been alleged to have been violated in order to spell out a viable cause of action under 241(6). Whether Ross actually requires a concrete rule contained within 12 NYCRR 23 to support a 241(6) claim, to the exclusion of all other rules enacted by the Industrial Commissioner but contained in other Parts of 12 NYCRR, seems to have created a difference of opinion between the Third Department and the rest of the State. In Ciminelli v Ackerman & Huebsch, 2 AD2d 1345 (4th Dept) the court ruled that it was reversible error for the lower court to have dismissed plaintiff's 241(6) claim on the basis that only a rule 23 provision can be relied upon and further held that 12 NYCRR12.1-4, dealing with Air Contamination, was a valid predicate for plaintiff's 241(6) claim. See Mazzocchi v IBM 294 AD2d 151, in which the 1st Dept also suggest 12 NYCRR 12.may serve as valid basis for a 241(6) claim. In Rzepka v 50 E. 78th the Second Department held 12 NYCRR 19.32 was sufficient to support a 241(6) claim. However, the Third Dept. in Creamer v Amsterdam High School, 241 AD2d 945, held that only a rule 23 violation can be used. When dealing with this issue it should be kept in mind that on October 1, 1997 Part 19 covering eye protection was repealed. For incidents occurring before that date it appears that support still exist for sections of Part 19 to be considered as a valid basis for a 241(6) claim. See Chavious v Friends Academy, 213 AD2d 509 and McCune v Black River Constrs, 225 AD2d 1078 dealing with 12 NYCRR 19.4

Types of Activity Covered by the Industrial Code Rule Allegedly Violated.
The plaintiff must establish that there is a causal connection between the provision claimed to be violated and the happening of the accident. The Code Rule relied upon must not only be applicable to the facts, the violation of it must be a substantial factor in the happening of the accident. Whether the rule applies to the facts is one of the threshold issues to be addressed by the court as a matter of law DeLong v State Street Assoc.,L.P., 211 AD2d 891, Whether the rule was violated and whether the violation was a proximate cause of the accident will generally be a question of fact.

Notice is not a prerequisite in a § 241(6) cause of action Rizzuto v. L.A. Wenger Contracting Co., Inc., 91 N.Y.2d 343 (1998)
Mr. Rizzuto was employed by a plumbing contractor to perform construction work on a project located upon New York City Transit Authorities premises. The Transit Authority was still operating its bus garage from the premises while construction was underway. Two Transit Authority employees were pressure testing an underground tank near plaintiff's work site. Suddenly, diesel fuel sprayed upon the plaintiff and his immediate work area. As plaintiff attempted to leave the work area to clean himself off, both his feet slipped out from underneath him and he fell. Plaintiff's claims against Wenger, the general contractor on the job, were premised upon § 241(6) and §200 of the Labor Law. The Lower Court dismissed both claims and the decision was affirmed by the Second Department upon the grounds that Wenger did not have actual or constructive notice of any dangerous condition that caused the accident. The Court of Appeals concluded that notice is not a prerequisite to establishing vicarious liability under § 241(6). See Allan v. Cloutier, 44 N.Y.2d 290. The principals set forth in Ross v. Curtis-Palmer, 81 N.Y.2d 494, only require that there be a showing of a specific Code Rule standard. Here, 23-1.7(d) is such a standard. The Court also reinstated the §200 cause of action upon a finding that Warner could be found by the jury to, in fact, have control over the worksite.

Also, in Rizzuto , the Court reminds us that 12 NYCRR 23 only sets forth standards, a violation of which merely amounts to some evidence of negligence but a violation of a rule or regulation is not prima facie proof of negligence. "Thus, once it has been alleged that a concrete specification of the code has been violated, it is for the jury to determine whether the negligence of some party to or participant in the construction project caused plaintiff's injury. If proven, the general contractor (or owner, as the case may be) is vicariously liable without regard to his or her fault." Allan v. Cloutier, supra; See also Monroe v. City of New York, 67 A.D.2d at 104; 1 PJI 2: 216A). This decision requires more than just establishing that an Industrial Code Rule has been violated, it also requires that it be shown that some "project party" was negligent. Thus, plaintiff must first allege, and prove, that a specific concrete Industrial Code Rule is applicable to the facts of the case and that it was violated, but then, the jury must still find that the violation was caused by somebody involved in the construction project (or the owner, contractor or their agents) and that the violation amounts to negligence. Once the negligence is established then the owner or general contractor can be found vicariously liable whether due to their own negligent acts or vicariously liable for their contractor's, subcontractor's or their agent's negligence.

WHO IS RESPONSIBLE UNDER § 241(6): Owners, contractors , and their agents.
As with §240, §241 requires that "all contractors, owners and their agents" must comply with the statute. Because this statute was enacted at the same time as §240 and uses the same phrase as to who must comply with it, New York courts will interpret it for purposes of 241 exactly as it does for 240. Rather than repeat the same information here please refer to those same sections under who is responsible for §240.

DEFENSES UNDER §240 AND §241

One and Two Family Homeowners Statutory Exemptions.
By statute, owners of "one and two family dwellings" who contract for work but do not control or direct a contractor's work are specifically exempted from strict liability under Labor Law §240(1). The Statute does not define one and two family dwellings. In Cannon v. Putnam, 76 N.Y.2d 644 (1990), the court held that if the residence is used partly for a residence and partly for business purposes, then an examination of the "site and purpose" of the work must be undertaken. If any portion of the work can be shown to benefit the residential aspect of the premises, than the exemption will still apply. In Van Amerogen v. Donnini, 78 N.Y.2d 880, 882 (1991), the court held that the one and two family dwelling exemption does not apply to homeowners who use their one or two family premises entirely and solely for commercial purposes. "Homeowners" who use their premises for rental/commercial purposes are deemed to have the sophistication and business acumen to recognize the necessity of hiring safe and competent contractors, and to insure against the strict liability imposed by §240. Therefore, the exemption did not apply to an owner of a four-bedroom one family home which had continuously been rented to students and which the owner used solely as rental property.

ENGINEERS AND ARCHITECTS: Engineers and architect's exemption.
By statute, architects and engineers are exempt from liability under §240 provided they do not direct or control the work activities. See Labor Law §240(1); Welch v. Grant Dev. Corp., 120 Misc. 2d 493 (Sup. Ct. Bronx Co.) (architect held not liable for work place accident where architect has no contractual right to supervise or control construction work). Engineers are exempt from liability under §240 if they do not direct or control the work. Hamby v. High Steel Structures, Inc., 134 A.D.2d 884 (4th Dept.). An engineer's duty to provide construction inspection services was not sufficient to create liability under Labor Law §240 since the engineer's duty was simply to report deviations from design to the State's engineer in charge and that he had no duty to direct that any action be taken. Carter v. Vollmer, 196 A.D.2d 754 (1st Dept.).

CONFLICTS OF LAW ISSUES
The Labor Law does not apply to accidents occurring outside of New York State's geographical boundaries. In Padula v. Lilarn Properties Corp., 84 N.Y.2d 519 (1994) the plaintiff fell from a scaffold on a construction site in Massachusetts. Plaintiff and defendant were both New York residents. The Court held that the statute would not apply to this out of state accident since New York choice of law rules requires an interest analysis approach. As per Schultz v. Boyschouts, 65 N.Y.2d 189 and Cooney v. Osgood, 81 N.Y.2d 66, if the statute is conduct-regulating, then the law of the site of the accident will control; if the statute involves loss-allocation, the law of New York would apply since both plaintiff and defendant have a common domicile in this state. The Court held that while the Labor Law has a loss-allocating basis to it, it is nonetheless primarily a conduct-governing statute. Judge Titone, in a concurring opinion, came to the same conclusion but for a different reason. He noted that the language of the statute states that "...the provisions of this statute... shall be applicable throughout the state..." and does not infer that it applies to out-of-state accidents.

The Legislative rational behind the absolute liability imposed by § § 240 and 241
Because §240 and §241 impose a nondelegable duty upon all contractors, owners and their agents to ensure compliance with the provisions of the statutes, the duty may be assigned by contract to another but the ultimate responsibility to an injured worker will still remain with the contractors and owners even after they delegated the duty to another party. It is this "absolute" nature of the duty that gives rise to the vicarious liability of the owner and or contractor for the acts of the party to whom they delegated the duty by contract. Correspondingly, since the plaintiff is entitled to recover damages in the first instance from the owner, even where the owner had completely delegated the responsibilities to carry out the construction work to an independent contractor, the owner has a vested interest in being reimbursed by the ultimate wrongdoer whose acts gave rise to plaintiff's injuries. This claim often is referred to as claim for indemnification and/or contribution The following will deal with the basic principles of apportionment, or contribution, amongst defendants as well as implied/common law indemnification and/or contractual indemnification claims as they relate to personal injury actions brought under the labor law.

The concept of liability over against another party exists not only by reason of case law such as Dole v. Dow Chemical Company 30 N.Y.2d 143 but also by statutory authority under CPLR Article 14, as well as by contract between the parties. Frequently the terminology of contribution, apportionment and indemnification becomes blurred or even lost in the practical application of the concept of liability over. To simply matters, claims for contribution under the CPLR or as derived from common law rule will be referred to as the apportionment of liability amongst defendants whether these claims are brought as cross-claims or third-party actions. Indemnification will refer to those situations where a defendant is liable to a plaintiff solely as a result of the vicarious liability imposed by statute, and who seeks one hundred reimbursement from another party, in other words, where the defendant is not guilty of any tortious or culpable conduct which gave rise to the plaintiff's injuries but is liable to the plaintiff simply because of the nondelegable duty imposed by the statute.

The typical line-up of parties in labor law cases starts with a plaintiff (the injured worker) bringing suit against a defendant (the owner of the site where the accident occurred) and the owner in turn bringing a claim over against the co-defendants or third party defendants (the general contractor who was directly hired by the owner and the subcontractor who ultimately had direction and control over the safety practices at the site where the accident occurred and/or who had the authority to direct and control the manner or method of plaintiff's work). In order to cover the various permutations that often arise, assume that the plaintiff was a mason who fell twenty-two feet from a scaffold which was not equipped with safety rails. The plaintiff brings suit against the owner of the property under §240(1). In turn, the owner brings a third-party claim against the general contractor who was hired by the owner to construct the three story building plaintiff was working on when injured and who was given complete authority and responsibility over the work site and the work itself. The owner also brings a third-party claim against the plaintiff's employer, who was hired as the subcontractor by the general contractor and who contracted to be responsible for the masonary portion of the work. Under this set of facts, the plaintiff would be entitled to judgment against the owner, even if the owner has given up all rights to control the worksite or the manner and/or method of work. Section 240 simply requires that the plaintiff establish he/she is within the class of people intended to be protected by §240 and that the statute was violated (the scaffolding provided lacked a safety rail).

The defendant owner has a legal right to be reimbursed for the damages he incurs by reason of the worker's claim against him/her, from all the contractors who assumed the responsibility to perform the work which gave rise to the plaintiff's injuries under CPLR article 14. If, ultimately, it is determined that the general contractor was 25% at fault and the subcontractor (plaintiff's employer) was 75% at fault, then the owner would be entitled to be reimbursed one hundred percent from the general contractor. The owner may also have had a clause contained within the contract between the owner and general contractor that the general contractor will indemnify the owner for any claims, losses or damages arising out of the performance of the general contractor's obligations under the contract. This would provide the owner with an additional legal right to be reimbursed one hundred percent of his losses upon a contractual indemnification claim. If there is no such contractual indemnification claim the defendant owner may plead the existence of the right to be reimbursed one hundred percent of his damages under the theory of a common law implied indemnity. See Nassau Roofing and Sheet Metal Co. v. Facilities Dev. Corp. 125 AD2d 754, 509 N.Y.S.2d 177. This form of implied indemnification stems from the common law holding that when a party is held vicariously liable solely because of the negligence of another, it would be unjust or unfair not to permit that party to obtain full reimbursement from the actual wrong doer. See Mas v. Two Bridges Assoc. 75 N.Y.2d 680, 555 N.Y.S.2d 669, Rosado v. Proctor and Schwartz, Inc. 66 N.Y.2d 21, 494 N.Y.S.2d 851. Under this example the owner is entitled to be reimbursed one hundred percent whether the claim against the other defendants and third-party defendants are called claims seeking contribution, apportionment, contractual indemnification or implied indemnification.

There are two principles of the Labor Law that needs to be followed when considering a claim over by a defendant. Sections 240, 241, 241-a of the Labor Law only provide the plaintiff with a statutory cause of action. Defendants do not derive any rights from the statutes itself. The statutes merely create the circumstances by which the defendant can assert the right to the contractual or common law contribution, apportionment or indemnification claim. See Young v. Casabonne Bros., Inc. 145 AD2d 244, 538 N.Y.S.2d 348. Secondly, only when the court can determine, as a matter of law, that the liability of a third-party plaintiff is solely based upon the vicarious nature of the statutes, and the defendant is otherwise free from all culpability, should a judgment be directed in favor of the third-party plaintiff, Kelly v. Diesel Constr. Div. of Carl A. Morse, Inc. 35 N.Y.2d 1, 358 N.Y.S.2d 685. The plaintiff's rights under the statute against the defendant and the defendant's right for contribution and or indemnification against other defendants are independent of each other. Therefore, summary judgment to a plaintiff should not be denied even if there are other legitimate issues of fact which involve the defendant's claims over against the other defendants. Putting this in terms of our example, assume all parties move for summary judgment and that the court has before it, some factual basis upon which a jury may determine that the defendant is found to have committed some culpable conduct which, in part, gave rise to plaintiff's injuries, then the defendant owner is not entitled to judgment over against the co-defendants, since there would be a legitimate issue of fact as to the apportionment of liability amongst defendants. However, this issue of fact does not affect the plaintiff's claim against the defendant owner and plaintiff would be entitled to summary judgment as long as he/she established that the statute was violated and the violation is a proximate cause of his injuries. Upon the trial involving the apportionment of liability amongst all defendants the claims would be resolved in accordance with PJI 2:275 wherein the jury will determine the percentage of fault amongst all defendants and third-party defendants. The defendant owner's claim over against the other defendants will be in the amount or proportion of the liability the jury assess against those other parties. In a technical sense these claims by the owner are for contribution/apportionment and not indemnification. Common law indemnification will only come into play if the defendant owner is truly found zero percent at fault. Additionally, §5-322.1 of the General Obligations Law prohibits owners and/or contractors from one hundred percent indemnification from another party for their own negligent acts or omissions. Thus if the owner did have a contract containing an indemnification clause, the contractual indemnification claim is unenforceable if it is demonstrated that the defendant owner is found to be partially at fault. The owner's remedy will be reimbursement for only that part which the jury assessed against the remaining defendants.

Another peculiar aspect of the Labor Law's application to the concept of liability over against other parties, involves the contributory negligence of the plaintiff. Let's assume under our example that the plaintiff was directed to use the scaffold by his co-employee / foreman, when the foreman knew that it lacked a safety railing. Because §240(1) imposes absolute liability upon the owner to provide appropriate safety devices, contributory negligence of the plaintiff is not a defense. Plaintiff under these circumstances would be entitled to judgment on liability for all damages against the defendant owner, with no part of the damages reduced by his/her culpable conduct.. Since the defendants claims over against the other parties, including plaintiff's employer stand separate and apart from plaintiff's statutory claims the third-party defendant plaintiff's employer would be responsible for the negligent acts of its employees (including the plaintiff) under the doctrine of respondeat superior. Therefore, the worker's employer would be liable to the defendant owner for the full amount of the percentage of negligence assessed by the jury for the acts of plaintiff's co-employee, foreman, as well as the acts of the plaintiff himself. See LaFleur v. Con. Ed. Co. of New York Inc. 245 AD2d 36, 665 N.Y.S.2d 861. The same result occurs if we assume that the plaintiff alone was the individual who improperly erected the scaffolding by negligently failing to attach the safety rail. Plaintiff would still be entitled to liability against the defendant owner because the statute imposes absolute nondelegable liability upon the owner to provide adequate safety devices. This responsibility cannot be changed by the owner's contract with the general contractor, passing all responsibility on to an independent contractor. Since we have assumed that the scaffolding violated Labor Law 240 and that the violation gave rise to plaintiff's injuries, any act or omission that the plaintiff is guilty of amounts to nothing more than contributory negligence, which is not a defense to the injured worker's claim. The owner, however, under these facts, would be responsible solely because of the vicarious liability imposed by the statute. He would be entitled to one hundred percent reimbursement over against the general contractor to whom he delegated the responsibility to comply with the statute. The general contractor who hired plaintiff's employer to perform the masonary work would be entitled to one hundred percent reimbursement because it was the subcontractor, through its employees, (the plaintiff) whose acts gave rise to plaintiff's injuries. Because plaintiff's statutory claims and defendant's claims over against each other are independent and arise under different legal theories, plaintiff's actions do not bar his recovery but plaintiff's employer cannot use that fact to minimize its damages.

Now let's assume that the plaintiff is the sole owner/employee of the third-party defendant masonry subcontractor. Plaintiff is entitled to summary judgment against defendant owner since his contributory negligence does not defeat the §240 claim. Defendant owner would be entitled to judgment over against the general contractor, since the owner was found liable only by reason of the vicarious liability imposed under the statute. Whether the general contractor is entitled to contribution or indemnification over against the third-party defendant masonary subcontractor will depend upon the form under which plaintiff conducts his/her business. In Bieber v. Tower Builder and Contractor Corp. 216 AD 2nd 431, 628 N.Y.S.2d 368 the plaintiff was entitled to recover damages against the defendant under Labor Law §240(1). The court imputed plaintiff's negligence to his corporation, a legal entity separate and apart from the plaintiff, even where the plaintiff himself was the president, shareholder and employee whose negligence gave rise to his own injuries. However, if the plaintiff is self-employed or does business under an unincorporated entity of which he is the principle owner, contribution or indemnification claims brought by the general contractor against the subcontractor will be dismissed for the reason that the subcontractor, under this assumption, is one and the same as the plaintiff. If these claims were permitted, it would defeat the intent of §240 by indirectly allowing plaintiff's comparative negligence to be used as a defense against §240.

The above analysis would apply to claims brought under the other absolute liability provisions of the Labor Law §241(1-5) and 241-a. Under § 241(6), where contributory negligence is a valid defense, the results would be different and conform to the procedures normally encountered in the garden variety negligence claims.

New York Labor Law Also Applies in ADMIRALTY Cases
In Cammon v. City of New York, 95 N.Y. 2d 583 (2000), the Court of Appeals affirmed the First Department's finding that Federal Maritime Law does not preempt the application of §240. Here the plaintiff was cutting timber, while standing on a float stage in navigable waters, while working on a pier. A passing tug boat created turbulence which caused the crane to swing out of control while it was lifting a piece of timber, eventually striking the plaintiff. The majority concluded that the exercise of admiralty jurisdiction does not result in automatic displacement of State Law. State rule will be preempted if the state rule conflicts with Federal Law, hinders uniformity, makes substantive changes, or interferes with the characteristic features of Maritime Law or Commerce. Even though §240 imposes absolute liability, the Court determined that strict liability under these circumstances will not "unduly interfere with the federal interests in maintaining a free flow of Maritime commerce." In the dissenting opinion by Judge Rosenblatt, with Levine concurring, the opposite conclusion was reached. Noting that contributory negligence is not a defense under §240, and that comparative fault is a characteristic feature of Maritime Law, the application of strict liability would not only materially prejudice the comparative fault doctrine, but that it would eviscerate it. Therefore, they concluded it does unduly interfere with Federal Maritime law and should preempt the application of §240.

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