LABOR LAW

Daniel R. Santola
Powers & Santola, LLP
39 N. Pearl Street, 6th Floor
Albany, New York 12207
(518) 478-6616

1. INTRODUCTION
   1. Under What Circumstances Will §240 Apply?
      1. Falling Workers  
      2. Falling Objects  
   2. Injuries Directly Related to the Effects of Gravity vs. Typical Hazards on any Construction Site  
   3. Falls from Ladders  
      1. Improper Placement or Unsecured Ladders  
   4. Falls Involving Trucks and Other Vehicles  
   5. Permanent Stairways and Other Permanent Structures  
   6. Elevators 
2. WHAT TYPE OF WORK DOES SECTION 240 COVER?  
   1. Demolition and Salvage Work  
   2. Repair Work vs. Routine Maintenance or Manufacturing  
   3. Alteration Work
   4. Painting 
   5. Cleaning Work 
   6. Pointing 
3. WORK ASSOCIATED WITH, OR AN INTEGRAL PART OF, A COVERED ACTIVITY  
4. BUILDING OR STRUCTURE  
5. THE CLASS OF PEOPLE COVERED UNDER §240 
6. WHO IS RESPONSIBLE UNDER §240?
7. PROCEDURAL ISSUES  
   1. Summary Judgment Motions Under §240 
   2. Necessary Facts to Prove a Violation or Defense under Section 240  
   3. Breach of the Statute  
   4. Unwitnessed Accidents  
8. PROXIMATE CAUSE  
   1. Recalcitrant Worker Doctrine/ Blake Defense
9. ADEQUACY OF THE SAFETY DEVICE  
10. SUPERSEDING CAUSE  
11. WHEN DOES §241(6) APPLY?  
    1. Must Plead and Prove a Specific Industrial Code Rule Violation  
    2. The Rule Must Apply to the Facts Which is a Matter of Law, Not One of Fact.  
    3. Scope of Work Covered by §241(6) 
    4. Type of Activity Covered by Industrial Code  
    5. Notice
    6. Proof of Negligence and Proximate Cause Required 
    7. Class of People Covered by §241(6).
    8. Who is Responsible Under §241(6)?
    9. Claim Premised Upon §241(8)  
12. DEFENSES UNDER §240 AND §241  
    1. One and Two Family Homeowners Statutory Exemptions  
    2. Comparative Negligence 
    3. Engineers and Architects  
    4. Workers Compensation 
    5. Grave Injury  
    6. Special Employee  
13. CONFLICTS OF LAW ISSUES INVOLVING A LABOR LAW  
14. LIABILITY OVER, INDEMNIFICATION/CONTRIBUTION  
15. PRE-EMPTION OF FEDERAL ADMIRALTY LAW  
16. §241-a LIABILITY  
17. §200 
18. NOTICE OF CLAIM
19. MISCELLANEOUS
20. §202 WINDOW WASHER STATUTE  

I.   INTRODUCTION

1. Under What Circumstances Will §240 Apply?

a. Falling Workers

Cavanagh v. Mega Contracting, 34 A.D.3d 411, 824 N.Y.S.2d 157 (2^nd Dept. 2006) Plaintiff was injured when he fell from the first floor to the basement of a building under construction, after a portion of the first floor sub-flooring collapsed. The court affirmed summary judgment in favor of plaintiff on the 240(1) case finding that the plaintiff had demonstrated a prima facia case by showing that the collapse occurred due to insufficient bracing of the floor and that no other safety devices were provided to prevent the collapse or to break the plaintiff’s fall. Since the defendant did not submit any facts to create a triable issue of fact affirmance was warranted.

Caruana v. Lexington Village, 23 A.D.3d 509, 806 N.Y.S.2d 634 (2^nd Dept. 2005) Plaintiff sustained injuries when the condominium balcony, from which he was discarding debris into a dumpster, collapsed. The Court dismissed plaintiff’s §240(1) claim stating “Labor Law §240(1) is inapplicable because the balcony is not a scaffold, but rather a permanent appurtenance to the building. Citing Norton, 263 A.D.2d 531, Dumbrowski, 217 A.D.2d 914, and Smith, 77 A.D.2d 619.

Note: In Cavanagh v Mega Contracting 824 NYS2d 157, the Second Dept. found that a plaintiff who fell to the basement when the first floor collapsed as a result of insufficient bracing. Isn’t a floor a permanent appurtenance to the building and not a scaffold? This is but one example of “apparent” conflicting decisions by the same court. There can be several factual and or procedural reasons for this. Maybe the “floor is not a scaffold defense” wasn’t raised or not thoroughly fleshed out on the motion. Maybe the focus of the court’s attention was deliberately directed to or away from the issue. There could be many valid reasons for an attorney to consciously choose to pursue or avoid a specific issue. And of course there is poor research that can explain these opposing results. What ever the reason, these types of conflict serve as a warning that Labor Law issues should never be decided by categorizing or labeling (i.e.: collapsed balconies cases in the 2^nd Dept. are not covered by 240(1) but all collapsed floors cases are protected by 240(1)). Circumstances such as this require exploring, sometimes beyond the decision itself, to find and explain the reason for the confliction result.

Milligan v. Allied Builders, 34 A.D.3d 1268, 824 N.Y.S.2d 524 (4^th Dept. 2006) The plaintiff tripped over uneven planking on a scaffold and fell to one knee. He did not fall from the scaffold. Under these circumstances the court concluded there was no violation of Section 240(1) which gave rise to plaintiff’s injuries.

Leshaj v. Long Lake Associates, 24 A.D.3d 928, 805 N.Y.S 2d 692 (3^rd Dept. 2005) Plaintiff was installing a water heater on the second floor of a home under construction. The walls had been framed, but not enclosed. While standing on the permanently installed floor, he stepped backwards into an open space between the studs and fell eight or nine feet through the open space which was designed to create an open two-story vaulted room of the building. The defendant argued that plaintiff's task did not expose him to an elevation-related hazard because his work called for him to stand on a permanent floor with no need for safety devices to carry out his work. The Court declined to accept that narrow view of plaintiff's work and granted summary judgment to him on the basis that the location where he performed his work (the second floor, which to plaintiff served as an elevated platform) exposed him to the opening leading nine feet to the first floor below. This required safety devices which were not provided.

Gonzalez v. Turner Construction Co., 21 A.D.3d 832, 801 N.Y.S.2d 310 (2^nd Dept. 2006) The plaintiff, while standing on a roof attempting to shift an 800 ft. rope was suddenly pulled forward by the rope and struck a beam. The Labor Law 240(1) claim was dismissed on the basis that it did not come within the dangers of a gravity-related accident which the statute was intended to cover.

b. Falling Objects

Coque v. Wildflower Estates Developers, Inc., 31 A.D.3d 484, 818 N.Y.S.2d 546 (2^nd Dept. 2006) This case presents multiple issues involving the 240 and 241(6) claims brought by an undocumented alien who was injured when the scaffold he was upon collapsed causing him to fall to the basement of the townhouse under construction. Under Balbuena v. IDA Realty, 6 NY3d 338, being an undocumented alien does not in and of itself preclude recovery for lost wages and is not a matter preempted by Federal Legislation. Apparently the collapse of the scaffold was precipitated by a package of shingles that fell from the sloped roof where it had been placed, through a skylight opening into the building and striking the plaintiff as he stood on the scaffold. “A worker at a construction site is entitled to judgment as a matter of law against an owner under Labor Law Section 240(1) where, as here, 'the furnished protective devices failed to prevent a foreseeable external force from causing a worker to fall from an elevation.” Cruz v. Turner, 279 AD2d 322. The court also held "the package of shingles that struck the plaintiff, which had been stacked together with other packages on the sloped roof of the building, was part of 'a load that required securing' ", citing Narducci v. Manhasset Bay, 96 NY2d 259. The plaintiff's failure to use more planking upon the scaffold was not the sole cause of the accident since the packages of shingles "were not secured". Finally the Court relieved the defendant roof company from liability under section 240(1) since it was a prime contractor and there is no showing that they had any control over the activities which gave rise to the plaintiff's injuries, citing Russin v. Picciano, 54 NY2d 311. (Presumably the roofing contractor was not involved in delivering the materials to the roof area from where it fell.)

NOTE: This is one of the few decisions holding that the plaintiff has met the Narducci test for falling objects, where the object is not in the very process of being raised or lowered. In most situations, where the act of raising the material has been completed and at some subsequent point in time the material then falls causing injury, the courts have held the Narducci test has not been met.

Portillo v. Roby Anne Development, LLC, 32 A.D.3d 421, 819 N.Y.S.2d 566 (2^nd Dept. 2006) The plaintiff sustained his injury when a steel beam fell upon the plaintiff as it was being cleared from the site of a demolition project. Defendant was denied summary judgment on the 240 claim since plaintiff had demonstrated a prima facie case that the material causing his injury was "a load that required securing for the purposes of the undertaking at the time it fell", citing Narducci, 96 NY2d 259. The court did dismiss the 241(6) claim, finding the cited Industrial Code Rules to be inapplicable and/or non-specific.

Turner v. Garten Foods, 33 A.D.3d 691, 823 N.Y.S.2d 182 (2^nd Dept. 2006) While upon a ladder, the plaintiff was cutting into some duct work at defendant's premises, when the section of duct work being cut swung downward and struck his arm causing in jury. Plaintiff's 240(1) claim was dismissed since this was not the type of hazard which is contemplated by the statute.

Cruci v. General Elec. Co., 33 A.D.3d 838, 824 N.Y.S.2d 105 (2^nd Dept. 2006)
The plaintiff, while in the process of hoisting duct work to his coworker’s approximately 15 feet above him, was injured when the ductwork fell and struck him. The court affirmed summary judgment to the plaintiff on his 240(1) claim as per Narducci v. Manhasset, 96 NY2d 259.

Cordova v. 360 Park Ave. South Assoc., 33 A.D.3d 750, 823 N.Y.S.2d 435 (2^nd Dept. 2006)
The plaintiff was injured when he cut a pipe extending from the ceiling of a building being renovated. The pipe fell striking the ladder causing plaintiff to fall. The court granted plaintiff summary judgment on the 240(1) claim. Also, the court rejected defendants contention that the plaintiff, an illegal alien, could not recover lost wages under the labor law, citing Balbuena v. IDR Realty, 6 NY3d 338.

Zirkel v. Frontier Communications, 29 A.D.3d 1188, 815 N.Y.S.2d 324 (3^rd Dept. 5/18/06) Plaintiff was injured when a telephone pole in its vertical position fell over striking him. There is no evidence in the record to explain why the pole fell. The Court dismissed the 240(1) claim on the basis that this was not an activity intended to be covered by the statute. Although the pole was to have been pulled out by a hydraulic crane, it fell before the crane was ever attached and thus not in compliance with Narducci v. Manhasset, 96 N.Y.2d 259. The 241(6) claim, premised upon 23-4.1 which protects against structural collapses associated with the loss of stability due to excavation, was not the cause of the accident since there is no proof as to why the pole fell.

2. Injuries Directly Related to the Effects of Gravity vs. Typical Hazards on any Construction Site

Peay v. New York City School Const. Authority, 35 A.D.3d 566, 827 N.Y.S.2d 189 (2^nd Dept. 2006)  Plaintiff, a mason, while working upon a scaffold, was injured when the masonry wall he was erecting collapsed on top of him. The court dismissed the Labor Law §200 claim against the general contractor on the basis that it did not exercise supervisory control over the plaintiff’s work and that “the construction manager’s authority to stop the contractor’s work, if the manager notices a safety violation, does not give the manager a duty to protect the contractor’s employees.” The 240(1) claim was also dismissed upon a ruling that “the wall that collapsed on the plaintiff was at the same level as his space and therefore was not a falling object for purposes of Labor Law §240(1).”

3. Falls from Ladders

a. Improper Placement or Unsecured Ladders

Ranieri v. Holt Const. Corp., 33 A.D.3d 425, 822 N.Y.S.2d 509 (1^st Dept. 2006) Without any discussion of the facts, the court affirmed summary judgment to plaintiff stating he fell from an unsecured ladder with no safety devices provided to protect him.

4. Falls Involving Trucks and Other Vehicles

Toefer v. Long Island Railroad and Marvin v. Korean Air, 4 N.Y. 3d 399, 828 N.E. 2d 614, 795 N.Y.S.2d 511 (Ct. of App. 2005) This is the first time the Court of Appeals has addressed the issue of whether an injury caused by a fall from a truck while it is being unloaded qualifies under §240(1)’s requirement of elevation-related work. Two cases were decided together, Toefer and Marvin. Toefer, who was working on a bridge rehab project, sustained serious injuries when he fell off the flat bed of a truck he was unloading at a construction site. The truck bed was approximately four feet off the ground. Marvin was injured when he too had fallen some four feet off the truck he had just unloaded. Toefer argued that he should have been provided with a hoist to unload the heavy logs from the truck rather than using wooden poles as levers to pry them off. Marvin argued he should have been given a ladder to assist him in climbing off the truck. Judge Robert Smith, referring back to Rocovich v. ConEd, 78 N.Y.2d 509, started the analysis with the statement that "all (safety devices enumerated in §240) entail a significant risk inherent in the particular task because of the relative elevation at which the task must be performed or at which materials or loads must be positioned or secured.” Here, the Court found the activities of both Toefer and Marvin to be closer to the plaintiffs’ activities in Bond v. York, 95 N.Y.2d 883, and Dilluvio v. NYC, 95 N.Y.2d 928. Like the activities in both Bond and Dilluvio, the plaintiffs were not being exposed to the elevation-related type risk that the statute requires. Bond was injured when he was attempting to exit a bulldozer and slipped off the track he was using as a step. There, the Court of Appeals held “the risk of alighting from a construction vehicle was not an elevation related risk which calls for any of the protective devices.” In Dilluvio, the Court dismissed plaintiff’s §240(1) claim where he was injured in a three foot fall from the back of a pick up truck he was riding in on the same grounds as in Bond. Also, the Court dismissed the plaintiff’s §241(6) claim, stating that there were no concrete Industrial Code Rules which were claimed to have been violated as required under Ross v. Curtis Palmer, 81 N.Y.2d 494.

NOTE: What the Court seems to be suggesting is that §240(1) will not apply if the plaintiff's injury occurs while he/she endeavors to perform a task which does not expose them to the extraordinary hazards or significant risk for which the exceptional protection of §240(1) was intended. The rule is easy to understand but its application to a given set of facts still proves to be less than certain. It might help to ask ourselves whether the activity which gave rise to the plaintiff's injuries (here, the unloading of a truck) is something that can happen to workers who are not involved in construction, excavation, demolition, repair, pointing, painting, etc. If the answer is yes, then there is a good prospect that the Court will conclude that the activity the plaintiff was performing did not give rise to the special hazard contemplated by §240(1). It is more likely that the activity will be found to be one of the hazards faced by any worker who has to unload a truck, rather than the ultra-hazardous type work listed in §240(1).

5.  Permanent Stairways and Other Permanent Structures

Gelo v. City of New York, 34 A.D.3d 636, 823 N.Y.S.2d 699 (2^nd Dept. 2006) Without any detailed description of the accident, the court affirmed dismissal of plaintiff’s 240(1) claim stating that “the permanently affixed ladder from which the injured plaintiff fell was a normal appurtenance to the building and was not designed as a safety device to protect the injured plaintiff from elevation-related risks citing Gold v. NAB Const. Corp., 288 AD2d 434 and Norton v. Park Plaza, 263 Ad2d 531.

NOTE: In the First Department case of Brennan v. RCP Assoc. 257 AD2d 389 the court rejected a similar defense argument. Brennan was on the roof of a building prepared to repair the cooling towers. Access to the towers was gained by climbing by use of a permanently affixed steel ladder from the roof to the service gratings located 6 ft. above the roof level. Plaintiff fell when walking on one of the grates which tipped causing him to fall. The First Department held “we emphasize that the determinative criterion in Ryan v. Morse Diesel, 98 AD2d 615 is not the permanence of the structure but its character as a normal appurtenance of the building rather than a device designed to protect the worker from elevation related hazards” since the platform from which the plaintiff fell was installed “precisely to afford access to the building’s cooling towers so as to permit normal maintenance and repairs” the device from which he fell belonged to the class enumerated in the statutes specifically a scaffold. The Gold case and the Norton case cited by the Second Department both deal with permanent stairways and not permanently affixed ladders.

Cavanagh v. Mega Contracting, 34 A.D.3d 411, 824 N.Y.S.2d 157 (2^nd Dept. 2006) Plaintiff was injured when he fell from the first floor to the basement of a building under construction, after a portion of the first floor sub-flooring collapsed. The court affirmed summary judgment in favor of plaintiff on the 240(1) case finding that the plaintiff had demonstrated a prima facia case by showing that the collapse occurred due to insufficient bracing of the floor and that no other safety devices were provided to prevent the collapse or to break the plaintiff’s fall. Since the defendant did not submit any facts to create a triable issue of fact affirmance was warranted.

Caruana v. Lexington Village, 23 A.D.3d 509, 806 N.Y.S.2d 634 (2^nd Dept. 2005) Plaintiff sustained injuries when the condominium balcony, from which he was discarding debris into a dumpster, collapsed. The Court dismissed plaintiff’s §240(1) claim stating “Labor Law §240(1) is inapplicable because the balcony is not a scaffold, but rather a permanent appurtenance to the building. Citing Norton, 263 A.D.2d 531, Dumbrowski, 217 A.D.2d 914, and Smith, 77 A.D.2d 619.

Note: In Cavanagh v Mega Contracting 824 NYS2d 157, the Second Dept. found that a plaintiff who fell to the basement when the first floor collapsed as a result of insufficient bracing. Isn’t a floor a permanent appurtenance to the building and not a scaffold? This is but one example of “apparent” conflicting decisions by the same court. There can be several factual and or procedural reasons for this. May be the “floor is not a scaffold defense” wasn’t raised or not thoroughly fleshed out on the motion. Maybe the focus of the court’s attention was deliberately directed to or away from the issue. There could be many valid reasons for an attorney to consciously choose to pursue or avoid a specific issue. And of course there is poor research that can explain these opposing results. What ever the reason, these types of conflict serve as a warning that Labor Law issues should never be decided by categorizing or labeling (i.e.: collapsed balconies cases in the 2^nd Dept. are not covered by 240(1) but all collapsed floors cases are protected by 240(1)). Circumstances such as this require exploring, sometimes beyond the decision itself, to find and explain the reason for the confliction result.

6. Elevators

DiPilato v. H. Park Central Hotel, 17 A.D.3d 191, 795 N.Y.S.2d 518 (1^st Dept. 2005) The Court declared that the passenger elevator in which plaintiff was riding when it plunged 18 floors to the elevator pit below was not a protective device designed to shield the workers from the harm directly flowing from the application of the forces of gravity, citing Lindstedt v. 813 Associates, 238 A.D.2d 386.

II. WHAT TYPE OF WORK DOES SECTION 240 COVER?

1. Demolition and Salvage Work

Nothing new or novel for 2007.

2. Repair Work vs. Routine Maintenance or Manufacturing

Barbarito v. County of Thompkins, 22 A.D.3d 937, 803 N.Y.S.2d 208 (3^rd Dept. 2005) After a factual review of whether the plaintiff was performing repair work vs., routine maintenance work at the time of his injury, the Court dismissed plaintiff’s §240(1) claim. The plaintiff was called to the defendant’s garage to “repair” the garage door opener which allowed a half inch gap at the bottom when closed. This required an adjustment to be performed on the chain. The Court stated that “the distinction between routine maintenance and repair does not turn solely on whether the work involves fixing something that is not functioning properly.” Even if the item to be repaired is malfunctioning or inoperable, when the work involves only component replacement or adjustment necessitated by normal wear and tear, it constitutes routine maintenance rather than “repairing” or any other enumerated activity. Abbatiello, 3 N.Y.3d 46, Esposito, 1 N.Y.3d 526, Smith, 85 N.Y.2d 1000.

NOTE: This “apparent rule” that repair work that requires only a component part replacement necessitated by normal wear and tear, constitutes routine maintenance work for purposes of §240(1), may lead to problematic arguments if rigidly adhered to. Suppose an air conditioning unit stopped working and the owner called for a serviceman to repair it. Upon inspecting the unit the repairman notes the compressor is no longer working due to the fact that it has exceeded its normal functional life expectancy. The serviceman is injured while in the course of installing the new component part. If undue emphasis is placed on classifying the work as only a replacement of a component part due to normal wear and tear, to the exclusion of other facts, the results will conflict with current case law.

Irizarry v. State, 35 A.D.3d 665, 828 N.Y.S.2d 113 (2^nd Dept. 2006)  Plaintiff’s employer was hired to perform extensive repair work at a state hospital. The plaintiff was injured by an explosion in an electrical box while attempting to repair the building’s electrical problems. The court dismissed his 241(6) claim on the basis that the work he was performing (even if it was extensive repair work) did not constitute construction, excavation, or demolition work which are the 3 activities governed by §241(6).

NOTE: While §240(1) governs “erection, demolition, repairing, altering, painting, cleaning or pointing” type activities, §241(6) only governs construction excavation and demolition.

Arevalo v. Nasdaq, 28 A.D.3d 242, 813 N.Y.S.2d 383 (1^st Dept. 2006) Plaintiff was injured when he fell from a ladder while reaching toward a dark spot on an otherwise totally the illuminated sign. His employer had a contract with defendant to "inspect and maintain" the sign. Apparently the sign was not working and needed a "new power supply box" which measured 8 x 12 x 6 inches. The Court rejected his claim that he was performing repair work for purposes of Section 240(1) and pointed out several decisions where the statute was held not to apply when the work was simply replacing a component part which wears out.

Gleason v. Gottlieb, 35 A.D.3d 355, 826 N.Y.S.2d 633 (2^nd Dept. 2006)  Plaintiff’s 240(1) and 241(6) claims were dismissed after the court concluded that the work he was performing, replacing a water coil in an air conditioning unit, involved only the replacement of worn out parts in a non-construction and non-renovation context. Therefore, he was not performing any of the enumerated activities covered by the statute.

Kirk v. Outokumpu American Brass, Inc., 33 A.D.3d 1136, 823 N.Y.S.2d 556 (3^rd Dept. 2006) The plaintiff was injured when he fell from a ladder while disassembling production machinery in the defendant’s industrial facility. Plaintiff claimed it was repair work but the court noted that the machinery was running and not broken just prior to this routine ‘shut down”. On a regular basis the machinery would be shut down and partially disassembled to perform what was ruled to be routine maintenance, which could not be performed unless the machinery was partially disassembled. “In the absence of proof that the machine or object being worked upon was inoperable or not functioning properly” the work could not be classified as repair.

Beehner v. Eckerd, Corp, 3 N.Y. 3d 751, 821 N.E. 2d 941, 788 N.Y.S.2d 637 (Court of Appeals, 2004) In a one paragraph memorandum decision, the Court dismissed plaintiff's §241(1) claim arising from an injury plaintiff sustained while working on an air conditioning unit inside defendant's store. Despite the Court's conclusion that the work the plaintiff was doing constituted "repair" work for purposes of §240(1), the Court nonetheless concluded that the plaintiff had completed the repair work and was only performing "retrieval of serial and model numbers from the unit and post repair inspection" at the time of the injury.” This, the Court said, was not repair work.

NOTE: The Court concluded in its decision that "we will not isolate the moment of injury…but here, as in Martinez, there is a bright line separating the enumerated and non-enumerated work.” This decision, especially the aforementioned quoted statement, will most likely muddy the waters rather than clarify the Court’s previous holdings in Martinez v. City of New York, 93 N.Y.2d 322, and Prats v. Port Authority, 100 N.Y.2d 878. In Martinez, the plaintiff was performing inspection work to determine the extent of asbestos which needed to be removed from NYC school buildings. When the survey was concluded, the project would enter Phase II, determining the budget necessary to hire contractors to do the work. Phase III, the actual hiring of the contractors who would then actually perform the demolition work, was separated by several months from plaintiff's work. Thus, the Court held that at the time plaintiff was injured there was no construction, demolition, alteration, repair, etc. work being performed as required by the §240(1). In Prats, the contract to perform repair work to many air handling units consisted of a mix of inspection to determine what was working and what needed to be repaired and the actual repair work. In Prats, the Court held it would not "isolate the moment of injury" in order to determine whether plaintiff was injured while performing an activity covered under §240 or one which was not at the precise moment of the injury. In Beehner, at least from the facts reported in the decision, plaintiff's employer, as in Prat, was hired to repair the air conditioning unit. Filling out paper work, recording serial numbers, and completing a post-repair inspection of the work is a common, customary, and necessary part of the overall project of repairing an air conditioning unit and providing a warranty of the repair work performed. I believe that finding a “bright line” separating the repair work from the completion of the paper work will not be seen with the same intensity by all judges.

3. Alteration Work

Munoz v. DJZ Realty, LLC, 5 N.Y.3d 747, 834 N.E. 2d 776, 800 N.Y.S.2d 866 (Court of Appeals 2005) This decision turned upon the classification of the work plaintiff was performing when the injury occurred. Plaintiff was installing a new poster billboard ad over an existing sign. The plaintiff emphasized the size of the billboard, 12 x 24 and 14 feet high, its location, on the roof of a building 28 feet high and that the plaintiff fell while he was climbing the 28-foot ladder to the building's roof. The defendant argued that the nature of plaintiffs work was cosmetic in nature (see LaFontaine v. Albany Management, 257 A.D.2d 219) because it did not affect the physical nature of the structure as required in Joblon v. Solow, 91 N.Y.2d 457. The Court held “Plaintiff’s activities may have changed the outward appearance of the billboard, but did not change the billboard structure, and thus were more akin to cosmetic or decorative modification than to “altering” for purposes of Labor Law 240(1).

Wormuth v. Freeman Interiors, Ltd., 34 A.D.3d 1329, 824 N.Y.S.2d 855 (4^th Dept. 2006)
Plaintiff was injured when he fell from a ladder while installing draperies at a house whose owners had contracted with defendant Freeman to design and install window treatments. “The work being performed by plaintiff does not constitute an alteration of a building or structure within the meaning of Labor Law §240(1): i.e., it does not involve a significant physical change to the configuration or composition of the building or structure” Joblon v. Solow, 91 NY2d 457.

Smith v. CSX Transportation, 30 A.D.3d 1003, 818 N.Y.S.2d 369 (4^th Dept. 6/9/06) Plaintiff was injured when he fell from atop a trailer which was sitting on a railroad car. Plaintiff had reached up to unlock a rusted bullet lock when the lock broke causing him to lose his balance and fall to the ground. The Court dismissed plaintiff's 240(1) and 241(6) claim, concluding that he was not engaged in an activity protected under either of these statutes. This was not construction, excavation, nor demolition work and they rejected plaintiff's argument that unlocking the bullet lock should be considered alteration within the meaning of section of 240(1).

NOTE: The Court of Appeals has previously concluded that railroad cars are structures within the meaning of Section 240(1). Gordon v. Eastern Railway Supply, Inc., 82 N.Y.2d 555. However, the task plaintiff was performing did not fit within the statute’s enumerated activities.

4. Painting

Loreto v. 376 St. John's Condominium, 15 A.D.3d 454, 790 N.Y.S.2d 190 (2^nd Dept. 2005) Summary judgment was granted to plaintiff after the Court concluded that his work of placing a wallpaper border in a stairway constituted repair work for purposes of §240(1), since the plaintiff demonstrated that in order to place the border, he was first required to prepare the walls, scrape them, spackle over uneven surfaces and paint over the areas that were flaking.

5. Cleaning Work

Swiderska v. New York University, 34 A.D.3d 445, 824 N.Y.S.2d 133 (2nd Dept. 2006) Plaintiff, a member of a cleaning crew, fell from a bed he was standing upon in order to clean windows of a dormitory. "Although this court has held that Labor Law 240(1) applies to window cleaners who are subject to elevation related risks inherent in their work, the statute does not apply to truly domestic cleaning or routine maintenance.

Broggy v. Rockfeller Group, 30 A.D.3d 204, 818 N.Y.S.2d 6 (1^st Dept. 6/13/06) Plaintiff, a window washer whose work was limited to cleaning interior windows was injured when he fell from a large desk he was standing upon in order to clean the window of a commercial building. Two co-workers, whose duties were confined to cleaning the exterior windows of the building, were working on the same window outside the building. Each of the co-workers had been provided with adequate safety harnesses to accomplish their task. When they finished, the plaintiff opened the window to allow the co-workers to re-enter into the room, but as he did so, he slipped and fell off the desk sustaining injury. The Court, adhering to its prior belief, that cleaning is only covered under Section 240 when it is incidental to building construction, demolition, and repair work, citing Brown v. Christopher, 211 A.D.2d 44, aff’d at 87 N.Y.2d 938. The Court then referred to Joblon v. Solo, 91 N.Y.2d 457, to examine whether the work might constitute an alteration of the building, which the Court quickly rejected. As to plaintiff's argument that the First Department has already applied 240(1) to routine office cleaning (not associated with any other covered activity under the statute), the Court specifically overruled Bustamante v. Chase, 241 A.D.2d 327, the case plaintiff relied upon. Furthermore, they rejected plaintiff's assertion that the Court of Appeals has ruled cleaning windows in a non residential setting is a covered activity in Bauer v. Female Academy of Sacred Heart, 97 N.Y.2d 445. The Court held plaintiff's work was confined solely to interior work, which Bauer does not cover, and plaintiff failed to establish the need for any safety devices for cleaning the windows. Plaintiff could have cleaned this window from floor level if the desk had been moved away from the window, a choice plaintiff and his co-workers decided against doing.

NOTE: It is ironic in that this Court was amongst the First to hold cleaning on its own to be an activity covered within the meaning of Section 240(1) in Bustamante v. Chase, 241 A.D.2d 327. There, the plaintiff was a member of an office cleaning crew, working in the defendant's bank after hours. Plaintiff while attempting to dust off the top of the partition walls fell and sustained injury and the Court held that cleaning was an activity covered by Section 240(1). In reliance on this decision, the Third Department allowed a maintenance worker cleaning snow from the roof of a building to be cleaning activity covered by the statute. Similar cases followed in the Fourth and the Second Departments.

Apparently the First Department feels its 1995 decision in Brown v. Christopher Street Owners Corporation, 211 A.D.2d 441, controls the issue of whether window washing is an activity covered under Section 240. There plaintiff was hired by a tenant and shareholder of a cooperative apartment unit to clean five of her windows in her apartment. The plaintiff slipped and fell three stories. Suit was brought against the owners of the building and the managers of the premises. The First Department ruled "accepting plaintiff's theory of liability pursuant to Labor Law 240(1), it is apparent that plaintiff was hired solely by the tenant without the consent or knowledge of either the owner or manager agent." Also, in Brown, the First Department referred to a 1958 decision of the Court of Appeals, Connors v. Boorstein, 4 N.Y.2d 172, for the proposition that cleaning under Section 240 was limited to cleaning which is "incidental to building construction, demolition and repair work and not to the cleaning of windows of a private dwelling by a domestic." On appeal, the Court of Appeals in Brown simply held that the word "cleaning” encompassed under the statute does not include the routine, household window-washing at issue here, also citing Connors v. Bookstein, 4 N.Y.2d 172. However, the Court went on in the next sentence to state "unlike the painting of a house (Rivers v. Sauter, 26 N.Y.2d 260) or the cleaning of all the windows of a large non-residential structure such as a school, Koneg v. Patrick Construct Corp., 298 N.Y. 313, the routine cleaning of the five windows of a single cooperative apartment by an individual engaged by the apartment owner is not the kind of undertaking for which the legislature sought to impose liability under Labor Law Section 240(1).

Most Courts have interpreted the Brown v. Christopher Street decision as holding routine window washing in a residential setting is not covered under Section 240(1) but the cleaning of windows in a large non-residential structure is covered under Section 240. Even the Court of Appeals in its 2002 decision of Bauer v. Female Academy seems in agreement with this conclusion. Judge Ciparick, on behalf of the Court in reversing the Third Department, held that plaintiff; a window washer injured when he fell from the second story of the building did have a valid cause of action under Section (241). Specifically referring to the Brown decision, she wrote: "Moreover, although Labor Law 240(1) covers 'cleaning', it does not apply to routine household cleaning. Brown v. Christopher Street Owners Corp., 87 N.Y.S.2d 938. Here, plaintiff may pursue his Labor Law Section 240(1) cause of action." Obviously, the First Department does not see Bauer as cleanly.

6. Pointing

Nothing new or novel in 2007.

III. WORK ASSOCIATED WITH, OR AN INTEGRAL PART OF, A COVERED ACTIVITY

Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847, 823 N.Y.S.2d 477 (2^nd Dept. 2006) The plaintiff was injured when he fell some 20 ft. from the ladder he was upon as he was trimming trees. Since trimming trees is not an enumerated act covered under the statute the court affirmed dismissal of this claim against Best Modular Homes. The court also dismissed all claims against the owners of the property under the 1-2 FM exemption.

NOTE: Although trimming trees is not an enumerated act under §240(1), the Court of Appeals has ruled that if tree removal is a necessary and integral part of the overall project than the performance of such work is an activity governed by §240(1), Lombardi v. Stout, 80 NY2d 290. In this factual setting the defendant Best was hired to erect a modular home on the homeowner’s lot. Best Modular retained the defendant Lawn Ranger to remove trees, tree stumps and perform land excavation. Plaintiff was performing this work at the time he sustained his injuries. There is no discussion in the decision of any basis upon which the court determined this activity of cutting tree limbs was not part and parcel of the overall project to build a modular home. This ruling on the 240(1) claim becomes even more perplexing when the court found the plaintiff had set forth a valid 240(6) claim premised upon 12 NYCRR 23-1.21 (b) (4) (iv) which requires ladders which are more than 10 ft, high to have mechanical means for securing the upper part of the ladder from side slip and the lower portion to be held in place by a person or secured to anchorage. Because §240(1) only applies to construction excavation and demolition work, three of the same enumerated activities which are covered under §240(1) isn’t the court in effect concluding the plaintiff’s work involved construction of a modular home and/or excavation necessary for the structures erection?

Rivera v. Santos, 35 A.D.3d 700, 827 N.Y.S.2d 222 (2^nd Dept. 2006) The plaintiff was injured while he and a coworker were attempting to cut down a large tree on property owned by defendant. Plaintiff was on the ground attempting to lower a branch which was tied off with a rope, but was unable to control the weight, resulting in the branch falling and striking him. The court dismissed the Labor Law claims concluding plaintiff’s work, the act of cutting trees, is not governed by §240(1) and the work was not an integral and necessary part of the overall plan to eventually build a structure after the land was cleared inasmuch as the tree removal was completed a few months before any construction work was commenced and that defendant’s contract with plaintiff’s employer was readily distinguishable from the other contracts defendant entered into for the construction work itself.

Dubin v. Difazio, 34 A.D.3d 626, 826 N.Y.S.2d 325 (2^nd Dept. 2006) “The question of whether inspection work falls within the purview of Labor Las § 240(1) and 241(6) must be determined on a case by case basis, depending on the context of the work.” Without discussing the specific details of plaintiff’s work the court concluded plaintiff was a covered person since the inspections were essential to an ongoing project otherwise covered by the statutes.

Hernandez v. Ten Ten Company, 31 A.D.3d 333, 819 N.Y.S.2d 42 (1^st Dept. 2006) The court reinstated plaintiff's 240 and 240(1) claims after determining there were legitimate issues of fact as to whether or not "construction was on-going at the time of the accident despite the fact that a portion of the premises was functioning as an office". There was sufficient evidence for a jury to conclude that the work plaintiff was performing punch list work replacing recently installed lighting fixtures and was part of the construction project. The court also determined that Industrial Code Rule 23-1.13, involving protection against electrocution, was sufficiently specific to support a 241(6) claim.

IV. BUILDING OR STRUCTURE

Campbell v. City of New York, 31 A.D.3d 594, 819 N.Y.S.2d 294 (1^st Dept. 2006) Multiple rules of law under §240(1) are nicely packaged in this six paragraph decision. Plaintiff’s employer was hired by Media One to splice an amplifier into a cable television line supported by utility poles owned by defendant Central Hudson. Plaintiff had climbed to the top of a telephone pole to perform the work when a co-employee’s truck slid down an embankment and struck the guy wires supporting the pole causing the pole to snap and plaintiff to fall to the ground while still tied off to the broken section of the pole. Plaintiff brought claims under §240, 241(6) and common law negligence. The 241(6) claim was dismissed because the work plaintiff was performing did not involve “construction excavation or demolition” within the meaning of the statute. Since plaintiff alleged that the pole snapped because it was in a decayed state, the court found there was a question of fact necessitating a trial. Central Hudson’s argument that it was unaware plaintiff was on its property or going to climb its pole for that matter was not a legal basis for dismissal of the common law negligence claim since its duty under Basso v. Miller, 40 NY2d 233 was to maintain the pole for foreseeable users whether they are authorized or unauthorized. The court also determined the truck rolling down the hill was not an unforeseeable superseding event, as a matter of law. The court noted plaintiff’s work, splicing amplifiers into a cable TV line, was an alteration of a structure within the meaning of 240(1), and this was not contested by the defendant. Also, under 240(1), Media One had the duty to comply with the statute since it was the owner of the cable and the entity that hired plaintiff’s employer. The court determined that the pole itself was being used, in essence, as “an elevating device analogous to a scaffold, and therefore was required to be strong enough to withstand force of a reasonable foreseeable magnitude. Forseeability as to the particular chain of events which ultimately lead to the need for the safety devices (in this case the support of the plaintiff by the telephone pole) is not a requirement under §240. The court, however, reversed the grant of summary judgment to plaintiff reasoning that plaintiff’s expert’s opinion, which was based only upon an examination of photographs, that the pole failed to comply with industry standards, did not provide an estimate as to the amount of force generated by the truck so as to distinguish whether the decayed pole and lack of truss supports was a proximate cause of the accident (upon the record it could not be determined that even with a pole which met industry standards, the force of the truck hitting the guy wire would nonetheless produce enough force to snap the pole).

V. THE CLASS OF PEOPLE COVERED UNDER §240

Downey v. Local 46 2nd Holding Company, 34 A.D.3d 318, 824 N.Y.S.2d 267 (1^st Dept. 2006) Without any discussion of the facts, the court denied summary judgment to the plaintiff stating there were issues of fact as to whether plaintiff "was hired by someone, be it owner, contractor or their agent”.

Ferenczi v. Port Authority, 34 A.D.3d 722, 826 N.Y.S.2d 329 (2^nd Dept. 2006) The plaintiff was employed on a project building a pedestrian walkway. He testified the foreperson closed the job down at 2:20pm on the day of the accident sending everyone home. After getting into his truck he realized he nay have left his phone back at his work station and attempted to retrieve it. He fell while climbing onto the structure. The court dismissed his Labor Law claims stating that the injury occurred “after the completion of any work that conceivably could have been covered under Labor Law 240(1).

Kirk v. Outokumpu American Brass, Inc., 33 A.D.3d 1136, 823 N.Y.S.2d 556 (3^rd Dept. 2006) The plaintiff was injured when he fell from a ladder while disassembling production machinery in the defendant’s industrial facility. Plaintiff claimed it was repair work but the court noted that the machinery was running and not broken just prior to this routine ‘shut down”. On a regular basis the machinery would be shut down and partially disassembled to perform what was ruled to be routine maintenance, which could not be performed unless the machinery was partially disassembled. “In the absence of proof that the machine or object being worked upon was inoperable or not functioning properly” the work could not be classified as repair.

Haque v. Crown Heights NRP Assoc., LP, 33 A.D.3d 864, 823 N.Y.S.2d 473 (2^nd Dept. 10/24/06) The plaintiff was injured while he was pouring acid into a basket while standing on a hanging scaffold at a construction site. Defendant, the GC on the project, sough to avoid responsibility by claiming that the accident happened on a Sunday and that it did not give plaintiff permission to work on Sundays. The court denied defendant’s motion for summary judgment stating there were sufficient triable issues of fact as to whether or not plaintiff had permission to work on the day in question.

VI. WHO IS RESPONSIBLE UNDER §240? - CONTRACTORS AND OWNERS AND THEIR AGENTS

Ahmed v. Momart and Fisher, 31 A.D.3d 307, 821 N.Y.S.2d 150 (1^st Dept. 2006) The court dismissed plaintiff's Labor Law claim against the owner of a residential loft, leased to the co-defendant, Fisher. Upon the motion, the owner demonstrated that the lessee, Fisher, hired plaintiff's employer without obtaining the owner's approval before, during, or after the work.

NOTE: In the head notes to the case, it states "… a plaintiff must establish: (1) that he was permitted to perform work on a structure and, (2) that he was hired by the owner, the general contractor, or an agent of the owner or general contractor." In most instances this statement will be accurate, but not always. There are several instances where the owner will be held liable even when the owner, or anyone on his/her behalf, did not hired the contractor, or benefited from the construction activities, or even had knowledge that work was taking place upon their property. A prime example is Gordon v. Eastern Railway Supply, Inc., 82 NY2d 555, where the court held the owner of the premises liable despite the fact it proved it had no connection with construction work, hiring the plaintiff or his employer, nor benefited in any way from the work plaintiff was performing at the time of his injury. The reasoning behind this holding is that the statute imposes absolute liability upon all owners of property. There are no qualifications, exceptions, or limitations upon the imposition of the liability set forth in the statute, other than owners of one and two family residents. The statute, according to the Court of Appeals, does not permit an owner to avoid liability by claiming lack of control over the work or the premises. All that need be shown is that at some point in time, a defendant owner, had control over who could utilize its property and/or for what purpose the property could be used and authorize that person to perform or engage others to perform activities covered under Section 240 of the Labor Law. Although in recent years some courts, including the Court of Appeals, have placed limitations on this doctrine, such as when the cable TV installer is performing work pursuant to a tenant's statutory right to have cable service installed and said work cannot be prevented by the owner, (see: Abbatiello v. Lancaster 3 NY3rd 46), or where the injured party is a true "trespasser" or instances where a landlord explicitly prohibits a tenant from performing work or engaging others to do so without first obtaining permission. Allowing a tenant exclusive occupation and use of the premises, whether under a long term lease, an easement, or other right of possession will not relieve the owner from liability even under circumstances where there is a complete lack of knowledge on the part of the owner and/or ability to control the work (Celestine v. City of New York 86 Ad2d 592, Aff’d 59NY2d 938 and Coleman v. City of New York 91 NY2d 821).

Albanese v. City of New York, 5 N.Y. 3d 217, 833 N.E. 2d 1204, 800 N.Y.S.2d 538 (Ct. of App. 2005) Plaintiff, a carpenter, while working on a scaffold suspended from a Cross-Bronx Expressway ramp was injured when a tractor trailer struck the bottom of the scaffold. The State had contracted for extensive resurfacing and rehabilitation of these expressways and several other adjoining parkways, bridges and ramps. Other than the City granting the State authority to enter upon and restrict the flow of traffic the City was not involved with participation in the selection negotiation or execution of the construction contracts. Rejecting the plaintiff’s argument that the Highway Law Article XII-B makes the City and the State co-responsible for the work site, the Court granted the City summary judgment holding it was not an owner for purposes of the Labor Law under these circumstances. The Highway Law specifically differentiates the interests of the State from that of the municipality (i.e., the State can only proceed with work after receiving the City’s approval, once the work is completed the State transfer’s jurisdiction to the City, Highway Law Section 349). However, these responsibilities are not absolute even during the construction. Here the State construction was ongoing when the plaintiff was injured and the City exercised no function with respect to the scaffolding that was part of the State’s rehabilitation of this interchange. The State was in complete charge of the project and the City had no say as to which 56.

Duarte v. City of New York, 34 A.D.3d 522, 826 N.Y.S.2d 314 (2^nd Dept. 2006) The plaintiff was injured on a project undertaken by the State DOT to clean and paint the Kosciuszko Bridge. Plaintiff commenced his Labor Law claims against the city as the owner of the bridge. In reliance upon Albanese v City of New York, 5 NY3rd 217, the court dismissed the claims against the city stating the City did not perform any of the work and its role was largely confined to issuing permits.
contractor or consultants were hired.

Natoli v. City of New York, 32 A.D.3d 507, 820 N.Y.S.2d 313 (2^nd Dept. 8/22/06) Plaintiff's decedent sustained injury on a construction site owned by the defendant city. Defendant, Malcolm Pirnie, Inc. was hired as a construction manager to coordinate the project. Malcolm moved for dismissal of all Labor Law claims arguing that it did not engage in the construction work, nor did it undertake to perform services which could give rise to vicarious liability. After reviewing the contract, the Court concluded that there were triable issues of fact as to whether Malcolm was a contractor or an agent, as those terms are used, under Section 240 and 241(6). "The title by which a party is known is not determinative, and a party with 'the ability to control the activity which brought about the injury' may be vicariously liable as an owner's agent or a contractor under those provisions of the Labor Law."

NOTE: Under Sections 240, 241, and 241-a, it is not necessary to establish a defendant did in fact supervise and/or control the activity which gives rise to an injury; it is only necessary to show the right to do so. In the context of a construction supervisors’ liability, the terms of the contract between the owner and the construction supervisor is critical in determining liability under the Labor Law.

Gagnon v. Hamlet, 35 A.D.3d 655, 828 N.Y.S.2d 115 (2^nd Dept. 2006) The court affirmed the jury’s verdict finding liability against the defendants apportioning the liability 70% and 30%. The court determined that appellants, who were in charge of the day to day operations of the site where the accident occurred, were united in interest for purposes of apportioning the liability, and there was no merit to the argument that the trial court inadequately distinguished liability between common law negligence and Labor Law 240(1).

VII. PROCEDURAL ISSUES

1. Summary Judgment Motions Under §240

Jaehn v. Lahr Construction, 34 A.D.3d 1191, 824 N.Y.S.2d 541 (4^th Dept. 2006) Plaintiff, a carpenter, was assisting his supervisor in detaching a pre-fabricated interior staircase from the building in order to reposition it. Plaintiff was on the landing at what was to be the top of the stairs. While holding the upper end of the staircase, it abruptly fell into the stairwell pulling plaintiff off the landing where he fell on top of the staircase at the level one floor below. "A work site is elevated within the meaning of Labor Law Section 240(1) where the required work itself must be performed at an elevation, ie., at the upper elevation differential, such that one of the devices enumerated in the statute will safely allow the worker to perform the task". Since the defendant did not provide any safety devices, the court affirmed summary judgment in favor of the plaintiff.

Filannino v. Tri-Borough Bridge, 34 A.D.3d 280, 824 N.Y.S.2d 244 (1^st Dept. 2006) The court denied plaintiff's cross motion seeking summary judgment under Section 240(1) upon procedural grounds. CPLR 3212(a) requires summary judgment motions to be made within the 120 days of the filing of the Note of Issue. The defendant moved for summary judgment on Section 200 and 241(6) on the 117th day. Plaintiff then cross moved on the 131st day. The majority held that plaintiff failed to establish a justifiable reason for the delay.

Liu v. Sanford Tower Condominium, Inc., 35 A.D.3d 378, 828 N.Y.S.2d 101 (2^nd Dept. 2006) The court granted summary judgment to the plaintiff since he established that he fell from a ladder during the course of his employment as an electrician when the ladder suddenly moved on a slippery floor due to a lack of rubber feet on the ladder.

Notaro v. Bison Const. Corp, 32 A.D.3d 1218, 821 N.Y.S.2d 715 (4^th Dept. 2006) The plaintiff sustained his injuries when he fell from an inverted bucket upon which he stepped while climbing onto a scaffold. The court denied defendant’s motion seeking dismissal because the defendant failed to supply the court with its answer. Plaintiff was denied summary judgment because the only defendant whose answer was submitted did raise an issue of fact as to whether or not there were stepladders “available at the job site”.

2. Necessary Facts to Prove a Violation or Defense under Section 240

Allen v. New York City Transit Authority, 35 A.D.3d 230, 828 N.Y.S.2d 301 (1^st Dept. 2006) Plaintiff was injured while he attempted to get off of the elevated platform he was working upon. To exit from the platform, he was required to climb over a 4 foot high surrounding wooden railing in order to gain access to an 8 foot ladder leading to the ground. As he did so, the platform shook and the top rail broke causing his fall. He was wearing a safety harness with a 3 foot lanyard which he tied off to an I beam while he was working but he disconnected it as he was attempting to climb down the ladder, all of which he claimed was in accord with the instructions he was given. The court granted summary judgment to plaintiff rejecting defendant’s claim he was the sole proximate cause of the accident for not tying off to something. “On this record, it is clear that any negligence in plaintiff’s use of the harness was not the sole proximate cause of the accident.”

NOTE: The court determined that the railing which broke was a violation of §240(1) on the part of the defendant. Anything that the plaintiff can be accused of having done negligently to contribute to the accident cannot constitute a sole proximate cause of the accident and therefore is nothing more than comparative negligence. What is fundamentally necessary to establish plaintiff’s prima facie case is the connection between the railing which broke and the plaintiff’s accident scenario, i.e.: but for the railing breaking I would not have fallen.

Jones v. West 56th Street Associates, 33 A.D.3d 551, 825 N.Y.S.2d 182 (1^st Dept. 2006) The court denied plaintiff’s motion for summary judgment on his 240(1) claim after finding issues of fact concerning how the accident occurred. While plaintiff alleged he fell from a scaffold, when he reported the accident to his supervisor he made no mention of a fall from a scaffold. Nor, did he mention it to his chiropractor when he first sought treatment. Also, the court noted, “plaintiff did not submit an affidavit from the coworker who was allegedly present at the time of the accident. Under these circumstances, a factual issue was raised.”

Vincente v. Roy Kay, Inc., 35 A.D.3d 448, 826 N.Y.S.2d 361 (2^nd Dept. 2006)  The court affirmed leave to renew the defendant contractor’s motion for summary judgment on the basis that it had acquired new information to demonstrate it was not a general contractor for the work the plaintiff’s employer was performing for the owner in upgrading the air conditioning system at a hospital. Since it was not in the chain of control for the work which gave rise to the injuries there can be no §240(1) liability. The court also dismissed the defendant’s second and third party actions since they could no longer be liable to the defendant. The court also permitted plaintiff’s amended complaint to allege a direct claim against the second and third party defendants, despite the expiration of the statute of limitations under authority of CPLR 203 (f) and Duffy v. Horton, 66 NY2d 473 since there could be no prejudice as both defendants had timely notice of the plaintiff’s specific claims by virtue of being impleaded.

Lopez v. Melidis, 31 A.D.3d 351, 820 N.Y.S.2d 210 (1^st Dept. 2006) The Court granted plaintiff summary judgment on his 240(1) claim upon a showing that the injuries were proximately caused by the A-frame ladder when the scaffold upon which it was placed moved while plaintiff was performing his overhead work. "Since the scaffold-and-ladder arrangement did not prevent plaintiff from falling 'the core objective of Labor Law Section 240(1)' was not met". The defendants did not produce any proof to support their argument that plaintiff's conduct was the sole proximate cause.

Hanna v. Gellman, 29 A.D.3d 953, 815 N.Y.S.2d 713 (2^nd Dept. 2006) The plaintiff, a plumber, claimed that his injuries occurred when the step ladder he was on slipped out from underneath him causing his fall. On the motion, defendants argued that they did not provide any ladders or equipment to the plumbers and there was some evidence that the plaintiff fell while standing on a spackle bucket. The plaintiff countered with the argument that if you believe the defendants, in this regard, then the defendant failed to provide me with any ladders, equipment or safety devices which still constitutes a violation of the statute. The Court granted plaintiff summary judgment stating that according to the plaintiff's version of the accident, the ladder was not properly placed. But, even if a jury were to believe defendant's version, the defendants would have still been in violation of the statute for failing to supply any safety equipment. On appeal the Court affirmed the grant of judgment on liability and rejected defendant's argument that plaintiff's decision to use the spackle bucket despite the availability of a ladder was the sole proximate cause. Defendant’s Blake v. Neighborhood Housing, 1 N.Y.3d 280 argument was improperly raised for the first time on appeal, and would not be considered.

Guaman v. Ginestri, 28 A.D.3d 517, 813 N.Y.S.2d 490 (2^nd Dept. 4/11/06) The Court reversed plaintiff's grant of summary judgment holding that defendants raised legitimate trial issues. Plaintiff claimed he fell from an elevated forklift platform. The defendant testified that plaintiff told him blocks had fallen on top of him and also argued that a forklift was never used on this project. Accordingly, defendant raised triable issues as to how the accident occurred and whether or not plaintiff was even exposed to an elevation differential.

Quichimbo v. Vornado, 30 A.D.3d 194, 817 N.Y.S.2d 898 (1^st Dept. 2006) Without any discussion of the facts, the Court affirmed summary judgment to plaintiff indicating the defendants failed to raise a triable issue of fact, and the hearsay they relied upon did not suffice.

Gates v. State of New York, 28 A.D.3d 1067, 813 N.Y.S.2d 335 (4^th Dept. 2006) The Court of Claims granted plaintiff summary judgment on the 240(1) claim as a result of injuries sustained when a bridge collapsed. Noting that there was a prior case arising out of the same accident against the state in which the Court affirmed summary judgment to claimant therein, Gates motion for summary judgment was also affirmed "for the reasons stated in our decision in Bradford v. State, 17 A.D.3d 995.

Ernest v. Pleastville Union Free School, 28 A.D.3d 419, 811 N.Y.S.2d 573 (2^nd Dept. 4/4/06) Without any discussion of the facts the Court affirmed summary judgment to plaintiff stating plaintiff made a prima facie showing of liability and defendant did not raise any legitimate issue of fact.

3. Breach of the Statute

Campbell v. City of New York, 31 A.D.3d 594, 819 N.Y.S.2d 294 (1^st Dept. 2006) Multiple rules of law under §240(1) are nicely packaged in this six paragraph decision. Plaintiff’s employer was hired by Media One to splice an amplifier into a cable television line supported by utility poles owned by defendant Central Hudson. Plaintiff had climbed to the top of a telephone pole to perform the work when a co-employee’s truck slid down an embankment and struck the guy wires supporting the pole causing the pole to snap and plaintiff to fall to the ground while still tied off to the broken section of the pole. Plaintiff brought claims under §240, 241(6) and common law negligence. The 241(6) claim was dismissed because the work plaintiff was performing did not involve “construction excavation or demolition” within the meaning of the statute. Since plaintiff alleged that the pole snapped because it was in a decayed state, the court found there was a question of fact necessitating a trial. Central Hudson’s argument that it was unaware plaintiff was on its property or going to climb its pole for that matter was not a legal basis for dismissal of the common law negligence claim since its duty under Basso v. Miller, 40 NY2d 233 was to maintain the pole for foreseeable users whether they are authorized or unauthorized. The court also determined the truck rolling down the hill was not an unforeseeable superseding event, as a matter of law. The court noted plaintiff’s work, splicing amplifiers into a cable TV line, was an alteration of a structure within the meaning of 240(1), and this was not contested by the defendant. Also, under 240(1), Media One had the duty to comply with the statute since it was the owner of the cable and the entity that hired plaintiff’s employer. The court determined that the pole itself was being used, in essence, as “an elevating device analogous to a scaffold, and therefore was required to be strong enough to withstand force of a reasonable foreseeable magnitude. Forseeability as to the particular chain of events which ultimately lead to the need for the safety devices (in this case the support of the plaintiff by the telephone pole) is not a requirement under §240. The court, however, reversed the grant of summary judgment to plaintiff reasoning that plaintiff’s expert’s opinion, which was based only upon an examination of photographs, that the pole failed to comply with industry standards, did not provide an estimate as to the amount of force generated by the truck so as to distinguish whether the decayed pole and lack of truss supports was a proximate cause of the accident (upon the record it could not be determined that even with a pole which met industry standards, the force of the truck hitting the guy wire would nonetheless produce enough force to snap the pole).

Wonderling v. CSX Transportation, 34 A.D.3d 1244, 824 N.Y.S.2d 839 (4^th Dept. 2006) Plaintiff sustained his injuries when he fell approximately 26 feet while disassembling scaffolding on defendant’s premises. The defendant moved for summary judgment claiming the plaintiff was the sole proximate cause of the accident because he was told not to disassemble the scaffolding in wet conditions and that he fell because of the slippery conditions and not any defect in the scaffolding. The court denied the motion, in part, relying upon plaintiff’s 50-h hearing in which he testified “that the scaffolding was unstable, causing him to fall.”

NOTE: Although it is still the rule that all a plaintiff need show is that the statute was violated and the violation was a proximate cause, more and more decisions on motions for summary judgment are focusing upon whether the plaintiff alleges facts which connect the accident scenario to the safety requirements imposed by the statute. Here the court spotlights the fact that plaintiff did have testimony on record that his fall was at least in part induced by an unstable scaffolding. Absent this fact Labor Law claim risks being dismissed upon defendant’s argument that the safety devices were not defective or improperly placed, etc., and the only cause of the accident was plaintiff’s misuse of the equipment.

Singh v. Six Ten Management Corp., 33 A.D.3d 783, 823 N.Y.S.2d 186 (2^nd Dept. 2006) Without any discussion of the facts, the court denied plaintiff summary judgment on his 240(1) claim after finding that the defendant raised triable issues of fact as to how the accident happened and whether the statute was violated.

4. Unwitnessed Accidents

Woszczyna v. BJW Associates, 31 A.D.3d 754, 820 N.Y.S.2d 289 (2^nd Dept. 2006) The Court reversed summary judgment in favor of the plaintiff and required a trial after finding that the plaintiff’s credibility was at issue as to how the accident happened. Here the plaintiff was the sole person possessed with knowledge of what happened in this unwitnessed accident and the defendant produced deposition testimony which seemed to contradict plaintiff's version of how the accident occurred.

Ewing v. ADF Construction, 16 A.D.3d 1085, 793 N.Y.S.2d 306 (4^th Dept. 2005) The Court rejected each of the several defenses raised in opposition to plaintiff's motion for summary judgment on the §240(1) claim. "Contrary to defendant's contention, the non-delegable duty under §240(1) is not met merely by providing safety instructions, or by making other safety devices available, but by furnishing, placing and operating such devices so as to give proper protection.” The C-clamp provided to the plaintiff was not, as a matter of law, a substitute for a ladder. Also, the fact that the accident was unwitnessed and discovery had not been completed did not constitute valid arguments against granting plaintiff summary judgment.

VIII. PROXIMATE CAUSE

1. Recalcitrant Worker Doctrine/ Blake Defense

Robinson v. East Medical Center, 6 N.Y.3d 550, 846 N.E.2d 1162, 814 N.Y.S.2d 589 (Court of Appeals 4/4/06) This is a fact specific case in which the Court stated as a matter of law the plaintiff's own negligence was the sole proximate cause of the accident, and not any violation of the statute by the defendants who the Court determined had provided adequate safety devices for the plaintiff's use. Plaintiff, a plumber, was injured when he was standing on the top of a 6-foot stepladder reaching up to the 12-foot ceiling to install pipe hangers. He slipped causing the ladder to topple, but was successful in holding himself up by grabbing onto one of the pipes supports and actually managed to straighten the ladder with his feet. Plaintiff, although he did not fall, claimed he sustained a shoulder injury due to his employers' failure to provide him with an 8-foot stepladder. The Court found the following facts in support of their dismissal of his claim as a matter of law: Plaintiff was 5'9" tall and he knew he needed a ladder taller than six feet to do the work safely; earlier that morning he had stated to his foreman that he would need an 8-foot ladder to do this work; there were 8-foot ladders on the job site; he knew where they were; his employer did not instruct him to commence working on the 12-foot ceiling; there was other work he could have performed while waiting for a ladder; he didn't look for an 8-foot ladder; nor did he follow up his request with the foreman; and he did not ask co-employees who might be using the 8-foot ladder whether they were finished. Plaintiff testified, "I don't think I ever asked him [the foreman] for anything. I knew where the tools were located. It is a practice of help yourself… you just grab a ladder and do the job."

Guaman v. New Sprout Presbyterian Church, 33 A.D.3d 758, 822 N.Y.S.2d 635 (2^nd Dept. 2006) The plaintiff, an air conditioning duct installer, was injured when the ladder he was standing upon, which was placed on top of a scaffold, tipped throwing him to the floor below. Defendant produced a hearsay statement upon plaintiff’s motion for summary judgment that he failed to follow instructions to stop working in an unsafe manner. The court reversed and granted plaintiff summary judgment after finding that the church had failed to raise a triable issue of fact concerning the recalcitrant worker defense. These so called prior instructions to stop work were inadmissible hearsay statements upon the motion. See Joseph v. Hemlok, 6 AD3d 392 and Allstate Ins. Co. v. Keil, 268 AD2d 545. Also the statement “failed to demonstrate that the plaintiff refused to use an available safety device,” Stolt v. General Foods, 81 NY2d 918.

NOTE: In the early stages of the recalcitrant worker defense, courts required the defendant to establish 1) that the defendant had affirmatively offered to the plaintiff an appropriate safety device and 2) an affirmative refusal to use the device by the plaintiff; Smith v. Hooker Chemical 89 AD2nd 361. Gradually the requirement of establishing an affirmative offer of the device to the plaintiff and an affirmative refusal on the part of the plaintiff was replaced by simply showing circumstances that established the presence of the device and its availability to the plaintiff, and the plaintiff’s awareness of its availability for use; Vona v. St. Peter’s Hospital 223 AD2nd 903. Eventually the recalcitrant worker defense was recognized as nothing more than a proximate cause defense. If a defendant provided appropriate safety devices to the plaintiff, and the plaintiff elected not use the device, or under certain circumstances misused them, then the injuries suffered by the plaintiff were not caused by the defendant’s violation of the statute (since it had provided appropriate devices) and therefore was 100% caused by plaintiff’s decision not to use the device, Blake v. Neighborhood Housing Services 1 NY3rd 280. What has been consistently recognized throughout this evolution of the recalcitrant worker defense is that mere instructions either to do something or not to do something, does not establish compliance with the statute. The defendant must supply appropriate devices, and words alone are not adequate. See, Stolt v. General Foods, 81 NY2d 918.

Marin v. Levin, 28 A.D.3d 525, 812 N.Y.S.2d 645 (2^nd Dept. 2006) Plaintiff, a roofer, fell while climbing a wall to the roof he was supposed to repair. After watching his foreman successfully use decorative protruding bricks on the wall to safely climb to the roof, plaintiff attempted the same, but lost his balance and fell. It was undisputed that there was a ladder strapped to the truck located at the work site. The Court denied summary judgment stating that while plaintiff established a prima facie case and that defendant could not rely on the argument that there was a ladder somewhere on the job site the Court felt there was still an issue of fact as to whether or not the plaintiff's failure to use the ladder was the sole proximate cause of the accident.

NOTE: This case exemplifies the Court’s retreat from a previously unquestioned black letter rule of law under the Labor Law: The owners, contractors and their agents have a non-delegable duty not only to provide safety devices, but also the obligation to have the safety devices "so constructed, placed and operated as to give proper protection to the person so employed." I doubt the ladder, which was stilled strapped to the truck when plaintiff was to follow his foreman to the roof, was so placed as to give proper protection to any one.

Berenson v. Jericho Water Dist., 33 A.D.3d 574, 822 N.Y.S.2d 145 (2^nd Dept. 2006) The plaintiff fell from a scaffold sustaining injuries for which he commenced a 240(1) claim against the owner of the premises. Although the court ruled that the plaintiff had established a prima facia case, summary judgment was denied on the basis there were questions of fact as to whether the plaintiff was the sole proximate cause of the accident. “Evidence was proffered in opposition to the motion suggesting that the plaintiff, or laborers under his supervision, placed an inadequate wooden plank (i.e., a “joist”) on the scaffold causing it to collapse. When a plaintiff handles a scaffold in such a manner as to create a condition causing its collapse, his or her conduct is the sole proximate cause of the accident” citing Storms v. Dominican College, 308 AD2d 575; Heffernan v. Bais Corp., 294 AD2d 401; Styer v. Vita Constr., 174 AD2d 662.

NOTE: This case presents a significant departure from long standing principles of §240(1) liability. In Blake v. Neighborhood Housing Services, 1 NY3d 280 the court held that liability arises from §240(1) only when plaintiff can demonstrate that the defendant violated the terms of the statute, and that the violation was a proximate cause of the accident. If there is no violation of the statute, Blake goes on to point out, then there can be no liability under §240. In the context of a ladder or scaffold collapsing the threshold question must be did the safety device collapse because the defendant did not fulfill its duties and obligations under §240, and that failure was a proximate cause, or did it occur because it was 100% caused by the plaintiff. This principle can be stated another way: if the accident was caused 100% by plaintiff’s actions (plaintiff was the sole proximate cause) then the defendant could not have violated the statute and/or the violation was not a proximate cause (all causes must add up to 100% and no more). Therefore it is important to determine if the statute itself was violated. If it was not, there cannot be any §240(1) liability. If there was a violation then it must be determined if the violation was a proximate cause. If the answer to this question is yes then any of the plaintiff’s acts which contributed to the accident are irrelevant since they amount to nothing more than comparative negligence, which is not a defense to a 240(1) claim. Therefore, the focus needs to be not upon what the plaintiff did which may have lead to the accident, but what the defendant did or more precisely what it failed to do.

Valensisi v. Greens at Half Hollow, LLC, 33 A.D.3d 693, 823 N.Y.S.2d 416 (2^nd Dept. 2006) Plaintiff's decedent was killed under circumstances which occur far too frequently on construction sites. The building under construction had two 36 x 42 inch openings in what was essentially the ground floor in order to allow materials to be lowered approximately 22 feet to the level below. Two sheets of plywood were laid over each opening, but were not secured in any manner. The decedent, unaware the plywood was covering the openings, was told by his supervisor to grab a hold of the top piece of plywood in order to cover over a grating to prevent dirt from falling through to the level below. The decedent began sliding, not just the top layer of plywood, but both sheets, and accidentally stepped into the opening they covered. OSHA cited the employer for violating 29 CFR 1926.501(b) which requires employers to install guardrails, safety nets, or fall protection for any employee exposed to such an opening. The lower court had dismissed the plaintiff's 240(1) claim, concluding that "the decedent's accident did not come within the scope of the statute because he was not performing work which exposed him to an elevation related risk". The Second Department recognized that because the decedent's supervisor had requested him to retrieve the plywood, he was most certainly performing work which exposed him to the dangers of an unguarded opening. Furthermore, the fact that he moved both pieces of plywood, when he was told to remove only the top one did not result in a conclusion that the plaintiff's acts were the sole proximate cause of the accident. The statute required safety devices which were not provided and which was a proximate cause of the accident. Plaintiff's actions, while they may have been negligent, were nothing more than comparative negligence and cannot be deemed the sole cause of the accident. Blake v. Neighborhood Hous Servs., 1 NY3d 280.

Pearl v. Sam Greco Construct. Inc., 31 A.D.3d 996, 819 N.Y.S.2d 193 (3^rd Dept. 2006) This case involves the recalcitrant worker defense times two. Plaintiff was employed to install a metal roof upon a building under construction at Hunter Mountain Ski Area. The plaintiff's employer had provided several types of safety lines, harnesses, etc. At the end of each days work the safety devices were stored in a gang box located on the metal roof 10 feet from the eaves. On October 9th (think snow), plaintiff and a co-worker were attempting to gain access to the gang box, but their path was blocked by frost and ice which they were trying to melt with a blow torch. In the process they fell and the defense claimed they had not violated the statutes since they had provided safety devices, which the plaintiff was not using and therefore was the sole cause of his own accident. The Court reversed and granted plaintiff summary judgment on liability stating that while the safety devices were provided, the second obligation of the defendant to "construct, place and operate them for the protection of the workers" citing Morin v. Machnick, 4 A.D.3d 668. Under these circumstances, plaintiff has proved that the statute was violated since the safety equipment was improperly stored on a slippery roof. Once it was determined the statutes was violated, defendants are liable because anything the plaintiff does thereafter is comparative negligence only.

The second issue was the defendant's argument that the plaintiff himself was the job supervisor and it was his negligent decision to place the gang box in its location that was the cause of the accident. The Court pointed out that even if it was plaintiff's decision where to put the gang box, the statute was still violated by the defendants, again plaintiff's choice as to where to put the gang box is nothing more than comparative negligence.

IX. ADEQUACY OF THE SAFETY DEVICE

Smith v. Fayetteville-Manlius Central School District, 32 A.D.3d 1253, 822 N.Y.S.2d 832 (4^th Dept. 2006) Plaintiff, a steel worker, was assisting in the guiding of a bar joist being lowered into position. Because of the location of the I-beam and its configuration plaintiff had to place the ladder in an adjoining hallway and after reaching to his left he slipped off the ladder to the floor below. Apparently the ladder did not fall. The court affirmed summary judgment to plaintiff on the 240(1) claim. “Based on those undisputed facts as established by the record, we conclude that, although it did not collapse or otherwise slip, the ladder did not provide proper protection to plaintiff by itself without the use of additional precautionary devices or measures.

NOTE: While the ladder itself performed its function, and did not fall slip or collapse, something more was needed for the plaintiff to carry out his task. Because there was no question of fact to be decided by a jury, summary judgment was appropriate since the ladder, as a matter of law, was not adequate under these circumstances. See Felker v. Corning, 90 NY2d 219.

Ortiz v. Turner, 28 A.D.3d 627, 813 N.Y.S.2d 770 (2^nd Dept. 2006) Plaintiff was injured as he leaned outside the building he was working upon through an unfinished window. He was wearing a safety harness which he personally supplied. After slipping and falling out the window, and then hanging onto the windowsill, pulling himself up safely, he sustained an injury to his shoulder. The court denied defendants motion to dismiss, stating the work did involve an elevation related risk and it was of no consequence that plaintiff's injury occurred as he prevented himself from falling further. Smith v. Artco, 222 A.D.2d 1028. Additionally, it was a question of fact as to whether or not the safety device was adequate under these circumstances.

Molyneaux v. City of New York, 28 A.D.3d 438, 813 N.Y.S.2d 729 (2^nd Dept. 2006) The plaintiff, while working upon a scaffold slipped on some unidentified substance, causing him to fall off the scaffold. The Court dismissed plaintiff's 240(1) claim stating that where the scaffold does not collapse, or is defective, something more is needed to establish that the statute was violated. Here, plaintiff is simply saying that he slipped on some substance, but makes no connection that the substance occurred as a result of the work, the scaffolding, or even associated with the project. Since there is no proof that the scaffold was inadequate, dismissal was appropriate.

X. SUPERSEDING CAUSE

Campbell v. City of New York, 31 A.D.3d 594, 819 N.Y.S.2d 294 (1^st Dept. 2006) Multiple rules of law under §240(1) are nicely packaged in this six paragraph decision. Plaintiff’s employer was hired by Media One to splice an amplifier into a cable television line supported by utility poles owned by defendant Central Hudson. Plaintiff had climbed to the top of a telephone pole to perform the work when a co-employee’s truck slid down an embankment and struck the guy wires supporting the pole causing the pole to snap and plaintiff to fall to the ground while still tied off to the broken section of the pole. Plaintiff brought claims under §240, 241(6) and common law negligence. The 241(6) claim was dismissed because the work plaintiff was performing did not involve “construction excavation or demolition” within the meaning of the statute. Since plaintiff alleged that the pole snapped because it was in a decayed state, the court found there was a question of fact necessitating a trial. Central Hudson’s argument that it was unaware plaintiff was on its property or going to climb its pole for that matter was not a legal basis for dismissal of the common law negligence claim since its duty under Basso v. Miller, 40 NY2d 233 was to maintain the pole for foreseeable users whether they are authorized or unauthorized. The court also determined the truck rolling down the hill was not an unforeseeable superseding event, as a matter of law. The court noted plaintiff’s work, splicing amplifiers into a cable TV line, was an alteration of a structure within the meaning of 240(1), and this was not contested by the defendant. Also, under 240(1), Media One had the duty to comply with the statute since it was the owner of the cable and the entity that hired plaintiff’s employer. The court determined that the pole itself was being used, in essence, as “an elevating device analogous to a scaffold, and therefore was required to be strong enough to withstand force of a reasonable foreseeable magnitude. Forseeability as to the particular chain of events which ultimately lead to the need for the safety devices (in this case the support of the plaintiff by the telephone pole) is not a requirement under §240. The court, however, reversed the grant of summary judgment to plaintiff reasoning that plaintiff’s expert’s opinion, which was based only upon an examination of photographs, that the pole failed to comply with industry standards, did not provide an estimate as to the amount of force generated by the truck so as to distinguish whether the decayed pole and lack of truss supports was a proximate cause of the accident (upon the record it could not be determined that even with a pole which met industry standards, the force of the truck hitting the guy wire would nonetheless produce enough force to snap the pole).

Rivera v. Rite Lite Ltd.: 13 Misc.3d 1142 (Supreme Kings County 2006)
The plaintiff alleged that he fell from a two story scaffold which suddenly moved when a coworker at ground level inadvertently attempted to move it. In resolving several issues on the various motions, the court rejected the defendants argument that the 240(1) and 241(6) claims should be dismissed since there was no proof the scaffolding was defective, deficient or that it collapsed and therefore was not the proximate cause of the accident. The court rejected the argument on the basis that “the fact that the movement of the scaffold was caused by the plaintiff’s coworker does not constitute a superceding cause of the accident so as to relieve an owner or contractor of liability under the statute.” The court rejected plaintiff’s motion for summary judgment on the basis that his credibility was properly placed in issue with the worker’s compensation claim form which stated he only fell two feet as opposed to two stories. Despite the fact plaintiff did not fill the form out the court credited this conflicting statement to him since he signed the form.

XI. WHEN DOES §241(6) APPLY?

1. Must Plead and Prove a Specific Industrial Code Rule Violation

Cahill v. Triborough Bridge, 31 A.D.3d 347, 819 N.Y.S.2d 732 (1^st Dept. 2006) The plaintiff had been using a "mechanical man lift" to reach the top of a 30-foot wall. After completing his task, he learned that co-workers had removed the man lift. In order to get down he climbed off the wall by hooking and unhooking his harness as he climbed down. When he needed to re-ascend he tried the same method, but fell from approximately 15 feet. The evidence established a ladder and safety lines were available along other parts of the wall, but the plaintiff stated he declined to use it because it was in a "dark area". A jury returned a defense verdict on the 240(1) claim. The jury did find that Industrial Code Rule 23-1.3, which states that "In no case shall such illumination be less than 10-foot candles in any area where persons are required to work, nor less than 5-foot candles in any passageway, stairway, landing or similar area where persons are required to pass”, was violated, constituted negligence and was a proximate cause of plaintiff’s accident. However, the court reversed, finding that the plaintiff did not produce any evidence to support a finding that the illumination in the area where the ladder was, fell below these specified levels.

Carty v. Port Authority, 32 A.D.3d 732, 821 N.Y.S.2d 178 (1^st Dept. 2006) The court dismissed plaintiff’s 241(6) claim on the basis that there were no industrial code violations set forth in the complaint or in the bill of particulars. Even though on the motion plaintiff alleged four separate industrial code rules, the court found each to be either general in nature, not applicable to the facts and/or not violated based upon the record before the court.

Halvorsen v. Baybrent Const. Corp., 33 A.D.3d 862, 827 N.Y.S.2d 61 (2^nd Dept. 2006)
Plaintiff was injured when he moved a refrigeration unit in connection with the construction of a store. The court denied defendant summary judgment, ruling that plaintiff’s allegation that 12 NYCRR 23-1.28(a) was violated was sufficient to establish his 241(6) claim.

Hernandez v. Ten Ten Company, 31 A.D.3d 333, 819 N.Y.S.2d 42 (1^st Dept. 2006) The court reinstated plaintiff's 240 and 240(1) claims after determining there were legitimate issues of fact as to whether or not "construction was on-going at the time of the accident despite the fact that a portion of the premises was functioning as an office". There was sufficient evidence for a jury to conclude that the work plaintiff was performing punch list work replacing recently installed lighting fixtures and was part of the construction project. The court also determined that Industrial Code Rule 23-1.13, involving protection against electrocution, was sufficiently specific to support a 241(6) claim.

2. The Rule Must Apply to the Facts Which is a Matter of Law, Not One of Fact.

Serrano v. St. James Episcopal Church: 12 Misc. 3d 1190 (Sup. Kings Co. 2006) In a very well-written detailed decision, the court considered several issues involving the 241(6) claim. Plaintiff and her co-worker were carrying a large beam from one area of the church to another when she heard a cracking noise and felt her foot going through the floor. In response, she stopped but the co-worker kept walking and the beam caused her to fall backwards sustaining injury. Immediately after, she saw "a nearby hole in the floor, which she believed was the cause of the cracking noise she had heard." She described the hole as approximately 1 ½ foot x 2 feet. Initially the Court dismissed the Common Law/ Section 200 Labor Law claim on the basis that there was no showing the defendant owner exercised direction and control over the plaintiff and her activities. As to the 241(6) claim, the Court ruled 12 NYCRR 23-1.7(b)(1) was not applicable to the facts since it protects against hazardous openings into which a person may fall. Although the court found the hole large enough for the plaintiff to fall through her description of the accident is only that the hole caused the "cracking noise", not that she fell into it. 12 NYCRR 23-1.7(e)(1) requiring passageways to be free from any obstructions which would cause tripping, is not applicable since that regulation only applies to passageways, not open areas where plaintiff's accident occurred. The court did grant leave to amend the pleadings to allege 12 NYCRR 23-3.3(c) which requires on-going inspection during hand demolition operations to identify hazards caused by weakening or deteriorating floors or walls and action to be taken to ensure worker are protected. Even though the Note of Issue had been filed, the Court found no prejudice since all of the facts necessary to support this requirement had already been included in the pleadings.

NOTE: Of all the Industrial Code Rules cited in this case the most obvious one that would apply to the facts of this case, 12 NYCRR 23-3.3(c), was the one the plaintiff initially forgot to plead. One suggestion to avoid this kind of overcite is to thoroughly understand the facts which gives rise to the accident, and with those facts in mind read every provision under 12 NYCRR 23.

Kinirons v. Teachers Ins., 34 A.D.3d 237, 828 N.Y.S.2d 293 (1^st Dept. 2006)
Plaintiff sustained injuries when he tripped over tools belonging to an electrician who was installing conduit. The tools were placed just to the right of the electrician, positioned within reach so he could perform his work. Under these circumstances the court ruled 12