Plaintiff, a carpenter, was assisting a co-worker in the installation of plywood for the roof of a building. He was standing on top of plywood sheets stacked onto the forks of a forklift which was elevated some 16 to 18 feet above the ground. From there, he could cut the sheets as needed and hand them to his partner, who was standing on the roof, and who would then nail them into place. Needing to use the bathroom on the second floor of the building, he stepped off the forklift onto the roof and walked over to a window. His intention was to enter the building through the window and walk across a header to reach a portable bathroom by way of a ladder. After beginning this trek, he realized he was unable to descend in this manner. As he attempted to walk back across the roof, he slipped and fell. The Court granted plaintiff summary judgment under §240(1) since it concluded, as a matter of law, that plaintiff was not the sole cause of the accident. The forklift was the only means by which plaintiff could access, or descend from, the roof, and the forklift was neither designed as an elevation safety device nor adequate for that purpose because it could not be controlled from the roof top where the plaintiff was working. The route the plaintiff took was neither negligent nor the sole proximate cause.

Wilson v. Niagara University , 43 A.D.3d 1292 (4 ^th Dept. 09/07)

The plaintiff was injured while attempting to gain access to a crawl space when the overturned five gallon bucket he was using as a step slipped out from under him. The Court held that, under these circumstances, the bucket "served as the functional equivalent of a scaffold, ladder or other device enumerated in the statute" and that defendant's motion should be denied. Plaintiff's cross-motion was also denied upon an issue of fact concerning "whether stepladders were available at the job site for plaintiff's use."

Capasso v. Kleen All of American, Inc. , 43 A.D.3d 1346 (4 ^th Dept. 09/07)

The plaintiff sustained a laceration to his arm when he fell from a scaffold that lacked safety rails. The scaffolding was set up in an elevator shaft located 50 feet from ground level, but only six feet from the elevator floor. When plaintiff fell off the scaffold, he was caught by a co-worker, thereby arresting his fall. The Court granted plaintiff's §240(1) claim, finding that two affidavits submitted by the defendant in an attempt to contest the manner in which the accident occurred could not be considered because the affidavits were made by employees who had no first-hand knowledge and, therefore, constituted inadmissible hearsay. The Court also rejected defendant's claim that an issue of fact existed as to whether plaintiff's feet actually came off the scaffold during the incident because his fall was arrested when a co-worker standing on the floor outside the elevator shaft caught him. The Court did dismiss plaintiff's §240(2) claim because the scaffold was not more than 20 feet from the ground or floor, as required by the statute.

Godoy v. Baisley LBR. Corp. , 40 A.D.3d 920 (2 ^nd Dept 05/22/07)

The plaintiff was injured while he was taping on the second floor loading dock of a building that was being renovated. The plaintiff did not need a ladder to perform the work because the ceilings were low. While bending down to pick up a tool, he lost his balance and leaned against the wall which, in fact, was a loading dock door that opened, causing him to fall approximately 20 feet below. The lAS Court dismissed all Labor Law claims, as well as common law negligence. The §240(1) issue depends upon how the factual scenario is perceived. If the plaintiff's task exposes him to an elevation risk calling for safety devices, §240(1) will apply. If the plaintiff's task is viewed as capable of being performed at "floor level" and his accidental leaning against the door presents nothing more than typical dangers associated with construction, §240(1) will not apply. Several facts brought out in the decision to support the Court's conclusion that §240(1) was applicable were that two co-workers of the plaintiff testified the loading dock doors ran along a track above the doors but were unsecured from swinging open at the bottom; a yellow caution tape had been placed in the front of the doors, together with a wooden plank running across the doors three feet from the bottom, both of which were missing on the day of the accident; another employee testified that the plaintiff fell between a one foot gap that existed between the bottom of the doors and the floor; there were no locks, latches, bars, or signs on the doors during the renovation; and safety bars were replaced and eye hooks installed to prevent the doors from opening, but defendants could not explain whether the hooks were not used or whether they were not installed, so as to prevent this accident. The Court held defendants failed to make out a prima facie case that would entitle them to summary judgment under these facts.

NOTE: This case illustrates how important it is to paint the correct picture. The simple description that plaintiff tripped and accidentally leaned against a door that opened and caused him to fall through sounds much like several prior cases dismissed by the Second Department on grounds that plaintiff's task did not call for him to lean against the doors. However, the plaintiff brought out the fact that the doors themselves were part of the construction project; the danger of accidentally opening the doors was known since the guardrail and eye hooks were installed. Someone had the foresight to install yellow warning tape but none of these were in place on the second floor on the day of the accident. There was also testimony concerning a one-foot gap between the wall and the floor in the vicinity where the plaintiff was required to work. Each of these facts helps to describe the plaintiff's task as one that exposed him to an unguarded and unprotected opening through which he could fall.

Dooley v. Peerless Imports , 42 A.D.3d 199 (2 ^nd Dept. 06/05/07)

The plaintiff was injured while working on a bulkhead adjacent to Newton Creek. In order to perform the work, he was given a 4' x 10' floating stage made of wood. There were no railings. While taking measurements down the length of the bulkhead he was required to remove the floating stage by grabbing holes in the bulkhead and pulling the staging where it was needed. The staging was about one and a half feet above the water line. When the staging suddenly shifted, resulting in it moving out from under his feet, he was left hanging by one hand from the hole in the bulkhead. He was able to pull himself up approximately a foot and a half but eventually slipped, fell into the water and struck his elbow and armpit on the floating stage. His feet did not touch the bottom of the creek. The plaintiff argued that he fell three feet to the water surface and another five feet into the water, for a total of eight feet, invoking a gravity-related danger that would entitle him to recover under §240(1). The Court resolved the issue in favor of the plaintiff, considering the floating platform to be no different than a scaffold. Without the staging, gravity "would have been a hindrance to his work, as much as it would be, for example, in a situation where a worker has to perform work enumerated in Labor Law §240(1) on a building with the help of a scaffold." If there had been a sufficient number of tie lines and/or a guardrail, this accident would have been prevented. Moreover, the Court specifically stated that "manifestly, there was a differential between the level of the plaintiff's work and a lower level, the latter being the bottom of the creek."

NOTE: The Court also mentioned that the plaintiff was wearing a tool belt which weighed some fifty pounds. With this added "dead weight," gravity would have been greater than the opposing forces of buoyancy. What if the defendant had been able to demonstrate that the plaintiff would have floated, canceling out the effects of gravity below the level of the water line? Based upon the Court's analysis that he fell approximately three feet before hitting the water, the result, no doubt, would have been the same.

b. Falling Objects

Buckley v. Columbia Grammar and Preparatory , 44 A.D.3d 263 (1 ^st Dept. 08/07)

The plaintiff, an elevator mechanic, was injured while installing a new elevator as part of an overall renovation project. The plaintiff and his co-worker were lowering the elevator's platform base from the eighth floor to the basement level in the elevator shaft for the first time. As the elevator platform is lowered, several counterweights in the elevator shaft are raised. While the plaintiff was standing in the doorway to the elevator shaft at the basement level, the counterweight frame, while ascending, hit a metal wire protruding from the wall of the elevator shaft, damaging the counterweight frame and causing some of the counterweights to fall out of the compartment housing them and down into the shaft, where the plaintiff was struck by them. In this 4:1 decision, the Court held that the recent decision of Outar v. City of New York, 5 N.Y.3d 731, did not alter the interpretation of Narducci v. Manhasset Bay Associates, 96 N.Y.2d 259, in which the Court held that §240(1) will not apply to falling objects unless the object is being hoisted or is part of a load that required securing for purposes of the work being undertaken. Here, the Court did not consider counterweights to be either in the process of being hoisted or objects which were required to be secured. They arrived at this conclusion by applying the foreseeability test, i.e., "what is essential to a conclusion that an object requires securing is that it presents a foreseeable elevation risk in light of the work being undertaken." That is what distinguishes the facts here from Outar and Bush ( Bush v. Gregory, 308 A.D.2d 360). In the dissenting opinion, Judge Mazzarelli referred to the Outar, supra, case for the proposition that "the Court of Appeals thus affirmed, as relevant here, that the appropriate inquiry was whether the object causing the injury 'required securing' rather than whether it was in the process of being secured at the time of the accident." The falling counterweights in this fact pattern were objects that needed to be secured because they posed an elevation-related risk "implicating the protections afforded by Labor Law §240(1)."

NOTE: Both opinions are well written, however, they approach the fact pattern from two different points of view. The majority opinion looks at the factual scenario as being so unique that it falls outside the realm of foreseeability. If the danger is not foreseeable, i.e., envisioning a wire protruding from the concrete wall at just the right position to knock the counterweights out of their frame, then providing protective devices called for under the statute is not required. The dissenting opinion views the accident scenario from the prospective of the statute's intention to protect workers who are exposed to an elevation differential such that gravity poses a danger to the worker. In the context of a falling object, the statute requires adequate safety devices when either hoisting materials or when materials at a different level than the worker need to be secured. The securing framework for the counterweights proved to be inadequate by the occurrence of the accident itself. Like the Court of Appeals decision in Gordon v. Eastern Railway, "to establish a prima facie case, plaintiff need not demonstrate that the precise manner in which the accident happened or the injuries occurred is foreseeable; it is sufficient that he demonstrate that the risk of some injury from defendant's conduct was foreseeable. An independent, intervening act may constitute a superseding cause, and be sufficient to relieve a defendant of liability, if it is of such an extraordinary nature or so attenuated from the defendant's conduct that responsibility for the injury should not reasonably be attributed to them." According to the dissent, it was foreseeable that the counterweights would fall and cause an injury if they were not properly secured, and the precise manner in which they become unsecured is not the measure of foreseeability. In this case, before the accident occurred, deposition testimony existed that the counterweights in this particular elevator design, unlike other designs, are not secured to their frame by an interlocking rod, but, instead, are merely notched into their frame and are otherwise unsecured. Also, as the plaintiff was lowering the elevator platform at the time of the accident, his co-worker heard a scraping sound and directed the plaintiff to stop and reverse the elevator's direction to determine where the scrapping noise was coming from. As the platform was being raised, the plaintiff's co-worker saw some of the counterweights dislodge and fall into the shaft. With these facts in the record, it was foreseeable that without proper securing of the counterweights to their holding frame, they could come dislodged and fall.

Zuluaga v. P.P.C. Const., LLC, 45 A.D.3d 479 (1 ^st Dept. 11/07)

There are several significant issues in this decision. Plaintiff was performing asbestos removal work on a building's first floor. He was injured when he was struck by a six foot long pipe that fell from several floors above where other workers were performing demolition work. The Court granted plaintiff's motion for summary judgment under §240(1), citing to Outar v. City of New York, 5 N.Y.3d 731, and Boyle v. 42 ^nd St. Dev. Project , 38 A.D.3d 404, for the proposition that §240(1) protects against falling objects that are in the process of being hoisted, and separate and apart from hoisting objects which need to be secured if they present a danger of falling. Here, workers were cutting and removing pipes from the pipe chase several floors above.

The Court also granted partial summary judgment on plaintiff's §241(6) claim premised upon 23-1.7(a) and 23-3.3(g), which requires that workers be provided with overhead protection in areas where there is a risk of falling debris. The Court also affirmed the lower court's grant of permission to plaintiff to amend his bill of particulars to allege violations of the Industrial Code and to consider the violations listed on the motion for summary judgment despite plaintiff's failure to identify them in the complaint and/or bill of particulars.

Castillo v. 62-25 30 ^th Avenue Realty , 47 A.D.3d 865 (2 ^ndDept. 01/08)

The Court reversed judgment which was based upon the jury's verdict, finding §240(1) was violated but that the violation was not a proximate cause of plaintiff's injuries. The jury heard two versions of how the accident occurred. An eyewitness to the accident testified plaintiff fell from an elevated work site when the metal rack he was working on suddenly came loose and that after plaintiff fell to the floor, he was then hit by the metal rack he was handling. Plaintiff's version was that he was standing under the scaffold when a piece of scaffolding fell and hit him in the head. The Court concluded that under either version there was "no rational basis for the jury to conclude that a violation of §240(1) was not the proximate cause of the plaintiff's injuries." Since defendants conceded that a fall from a scaffold would be covered under §240(1), then, if the jury believed the eyewitness version, judgment for plaintiff was warranted. If the jury believed the second version, plaintiff would also be entitled to judgment since injuries caused by part of the safety device itself falling onto the plaintiff establishes the violation. "[P]roper construction ... of the [scaffold], which is one of the safety devices enumerated in the statute, could have prevented" the object from falling onto the plaintiff and thereby constitutes a violation of the statute."

Cambry v. Lincoln Gardens , 50 A.D.3d 1081 (2 ^nd Dept. 04/29/08)

The plaintiff was injured when a large piece of metal fell from a dolly onto his foot. This, the Court concluded, did not give rise to a valid §240(1) claim because it did not present the kind of elevation-related hazard necessary under §240(1). Moreover, the Court cited Narducci for the proposition that a falling object does not give rise to a §240(1) claim unless the object is "in the process of being hoisted or secured when it falls." The metal that fell was not being hoisted or secured at the time of the accident.

Moller v. City of New York , 43 A.D.3d 371 (1 ^st Dept. 08/07)

Since the plaintiff's injury was sustained when a two ton structural piece fell as it was being hoisted to an elevated platform, the Court affirmed summary judgment to the plaintiff under §240(1).

Boyle v. 42 Street Development Project , 38 A.D.3d 404 (1 ^st Dept. 03/27/07)

In this 3:2 decision, what qualifies as an object that is being "hoisted or secured" for purposes of §240(1), was at issue. The accident occurred when the plaintiff and his crew were installing metal stairs on the eighth floor of a building. The procedure involved raising the metal stringers (sides of the stairs) by hoisting them from ground level to the eighth floor through the elevator shaft. At the eighth floor, two workers were positioned so they could unload and install the stringers by swinging the stringers out of the elevator shaft and onto a platform in the stairwell adjacent to the elevator shaft. The stringers would then be affixed to the building by six feet long threaded rods connected to the building's structural steel. These rods were attached to the structural steel by washers and bolts that were deliberately not tightened until the stairs were attached in order to facilitate leveling of the stairs. During the process of aligning one of the stringers to the threaded rod, the bolt attaching it to the building came off. This caused the rod to fall two floors through the elevator shaft where it struck the plaintiff. Initially, the lAS judge denied plaintiff's motion for summary judgment and defendant's motion for dismissal. However, on re-argument, the Court granted defendant's motion to dismiss the claim on the basis that the rod was not being "hoisted and secured" at the time of the accident. The majority held that Narducci should not be so narrowly read as to require the object that strikes the plaintiff to have been in the process of being hoisted, holding that "the proposition that an object must fall at the precise moment of being secured during the work progress in order for the statute to apply" was not Narducci's intent. The glass that fell in Narducci was part of the pre-existing building structure and was not involved in any way with the work the plaintiff was performing. "In other words, the glass did not qualify as the type of falling object contemplated by the statute because it was not an integral part of the renovation/construction work undertaken by plaintiff that involved the hoisting or securing of objects." The dissenting opinion focused upon the undisputed fact that the rod that fell was not being hoisted for a load which required securing for the purposes of the undertaking at the time it fell" citing Roberts v. General Electric, 97 N.Y.2d 737, and Narducci v. Manhasset, 96 N.Y.2d 259. Also, the dissenters felt the plaintiff must show the object fell because of the absence of a safety device enumerated within the statute and that "the rule of noscitur a sociis" limits the construction of "other devices" as used in §240(1). It must be read to limit its application only to the preceding words and, therefore, would not include additional bolts as argued in this case. The dissenters also disagreed with the majority's statement that Narducci and Roberts did not involve objects which were "an integral part" of the renovation/construction work and therefore are distinguished from the facts of this case. They claim "the Court of Appeals has specifically rejected an integral and necessary part test as improperly enlarging the reach of the statute beyond its clear terms" citing, Martinez v. City of New York, 93 N.Y.2d 322. In rebuttal, the majority stated the dissenters were confusing the issue rather than clarifying it by citing Martinez. In Martinez and Adair v. Bestek Lighting, 298 A.D.2d 153, the issue was strictly confined to plaintiff's job descriptions. In this case, the issue is the nature of the object that fell on the plaintiff, not the scope of plaintiff's employment.

NOTE: This case demonstrates several diametrically opposed views on the Labor law. The majority view approaches the issues with an emphasis upon the purposes behind the statute in the cases interpreting it. The dissenters, on the other hand, seek to resolve issues with bright line rules and standards. The majority opinion can be said to follow the holding in Zimmer v. Chemung County; that the statute should be liberally interpreted to fulfill the purpose behind the statute, while the dissenting opinion displays intent to limit the application of the statute to the meaning of the words used therein. This decision can also be cited as an example of substance over form.

2. Injuries Occasioned by Extraordinary Elevation-Related

Hazards vs. Typical Hazards on any Construction Site

Favreau v. Barnett & Barnett , 47 A.D.3d 996 (3 ^rd Dept. 01/03/08)

In this 3:2 decision, the Court was called upon to determine if a plaintiff who is not provided with any safety devices, sustains an injury while walking backwards up a pitched roof carrying a piece of sheet rock, steps on a piece of ice resulting in a slip and fall onto the same spot of the roof presents a fact pattern covered by section 240. Interestingly, both opinions cited Striegel, 100 N.Y.2d 974, in support of its position. The majority determined that since "he landed right where he fell without falling off the roof or sliding down in any way," the incident should be viewed no differently than any other slip and fall case and had nothing to do with an elevation differential. They pointed to Striegel and Ross v. Curtis Palmer, 81 N.Y.2d 494, which held the statute was designed to protect workers from harm "directly flowing from the application of the force of gravity to a person or object." The dissenters focused upon where the accident occurred and not where he landed. Working on a sloped roof implicates a recognized gravity-related risk and there are specific safety devices designed to address that risk. "Both here and in Striegel, no safety devices were provided. The plaintiff in Striegel - unlike here - also slid part way down the roof, but his injuries mostly occurred in the initial fall and not the subsequent slide."

NOTE: Generally, there is never a disagreement about the legal principals underlying the Labor Law itself. The disagreement arises over whether a specific rule applies to the facts of a given case. In this case the majority focused upon whether this accident can occur, in the same fashion, in a non-elevated site location. The minority looks at whether or not the work gives rise to a potential of harm due to an elevation differential that presents a risk in need of the safety devices. More than likely each side would agree that the purpose of the statute is to mandate the use of safety devices enumerated in the statute and if the use of one of the safety devices would have prevented the accident (the fall in this case) §240 applies. The majority's position is that although the statutes may require safety devices (none of which were provided here) that factor is irrelevant since the plaintiff could have fallen and sustained the same type of injuries if he slipped on ice while walking backwards at ground level. In other words, the defendant's failure to provide the required safety devices was not the proximate cause of the fall. The majority view is that there must be some connection between what, or how, one of the enumerated safety devices referred to in section 240 would have prevented the accident. Without showing this connection we have nothing more than the garden variety slip and fall case as a result of an icy condition.

Cruz v. Neil Hospitality, LLC , 50 A.D.3d 619 (4th Dept. 04/01/08)

Plaintiff, an ironworker, sustained a crush injury to his leg while attempting to manually push an 800 pound I-beam over a slight rise on the ground. Halfway up the rise, the plaintiff and his co-workers lost control, resulting in the beam sliding back and crushing plaintiff's leg. The Court dismissed the §240(1) claim, finding that the beam was not elevated above the work site and, therefore, it amounted to the usual and ordinary dangers of a construction site and not the extra-ordinary elevation risks envisioned by Labor Law §240(1). The §241(6) claim was also dismissed since 12 NYCRR 23-2.3(c), requiring tag lines, does not apply to the facts.

Geonie v. OD and PNY Ltd., 50 A.D.3d 444 (1 ^st Dept. 04/15/08)

Plaintiff's §240(1) claim was dismissed since his injury was caused by stepping into an opening left by the removal of a tile in a raised "computer floor," and did not present the type of elevation-related hazard contemplated by the statute. The §241(6) claim was dismissed since 23-1.7(b)(1) was not applicable to these facts.

3. Falls from Ladders

Cohen v. Memorial Sloan-Kettering Cancer Center , 11 N.Y.3d 823 (10/28/08)

In a memorandum decision the Court reversed a 3:2 Appellate Division decision, dismissing the plaintiff's 240(1) claim. The plaintiff, an electrician, was installing metal racks into the ceiling of a room within defendant's hospital which was undergoing renovation. The plaintiff was only six feet tall and the work needed to be done at a height of nine feet. The plaintiff was using a standard A-frame ladder which was in no way defective. After moving the ladder several times to follow the path of the necessary work, the plaintiff reached a corner in the room where some metal pipes protruded from the wall. It was undisputed that in order to reach the necessary work, the ladder had to be placed in front of the projecting pipes, which interfered with the use of the first step on the ladder and required the plaintiff to step from the second step directly to the floor while descending. After performing his work on the ladder, and while descending it, the plaintiff's foot became wedged between the second rung of the ladder and one of the pipes directly behind him as he was attempting to step to the floor below. His foot became caught and he strained his knee and fell to the floor. The plaintiff argued that his fall was proximately caused by his inability to step down the ladder one rung at a time due to the absence of an adequate safety device which would have allowed him a safe descent. Despite the ladder being non-defective, plaintiff alleged the ladder was inadequate for the task required of him because of the location of the pipes. He had no alternative but to place the ladder, as he did, blocking the second step. Plaintiff pointed out that a different device was necessary to safely do the work, such as a scaffold.

The defense argued that Nieves v. 5 Boro, 93 N.Y.2d 914, contained identical facts and required a dismissal of the 240(1) claim. Nieves involved a plaintiff stepping off the last rung of a stepladder onto a tarp covered floor. As he did so, he accidentally stepped on a portable light that was covered over by the tarp, causing him to fall to the floor. There, the Court of Appeals held plaintiff's accident did not involve an elevation-related risk, but was a tripping hazard associated with non-elevation-related work. According to the defendant, the plaintiff's accident had nothing to do with performing elevation-related work, the ladder was not defective, and the cause of the accident was the protrusion of the pipes, which is a hazard unassociated with performing elevation-related work.

The Court of Appeals agreed with the defense stating "...the presence of two unconnected pipes protruding from a wall was not "the risk which brought about the need for the [ladder] in the first instance'." It was nothing more that the usual and ordinary hazards encountered on a construction site.

NOTE: This case provides a good backdrop for arguments on both sides of the issue. No one is disputing the facts, only how the facts fit into the theory of liability under §240(1). The plaintiff argued that the statute requires not just that an adequate ladder be provided, but that the ladder be properly erected and placed. While the ladder was not defective, it could not be adequately placed to provide protection for climbing and descending without creating the danger caused by the protruding pipes, which prevented a normal, safe descent. This was the wrong tool for the job. Something more was needed due to the circumstances created by the presence of the pipes. The defense's argument focused on the immediate cause of the injury, i.e. protruding pipes. The ladder was not defective and it allowed the plaintiff to perform his elevated work without incident. It did not slip, collapse or malfunction; therefore, the statute was complied with. They argued, just as in Nieves, that it was not the ladder, or its placement, but an object unassociated with the elevated work that caused the injury.

McCarthy v. Turner , 52 A.D.3d 333 (1 ^st Dept. 6/12/08)

The plaintiff was injured when he was drilling holes in a ceiling while standing on an unsecured ladder which tipped over resulting in his fall. The Court held the plaintiff was not required to show that the ladder was defective. "It is sufficient for purposes of liability under §240(1) that adequate safety devices to prevent the ladder from slipping or to prevent plaintiff from falling were absent." Orellano v. 29 East 37 ^th Street , 292 A.D.2d 289. The Court also determined that the apprentice electrician plaintiff was working with is not a safety device contemplated by the statute. And, even if the plaintiff had disobeyed instructions to have the apprentice hold the ladder it would not relieve the owners of liability to provide adequate safety devices. Stolt v. General Foods Corp., 81 N.Y.2d 918.

Dowling v. McCloskey Community Services , 45 A.D.3d 1232 (3 ^rd Dept. 11/07)

Plaintiff fell from an extension ladder he was on while painting a ceiling. He heard a creaking sound and the ladder slipped out from underneath him. The Court granted plaintiff summary judgment referring to Beesimer v. Albany Ave., 216 A.D.2d 853, "where the device collapses, slips or otherwise fails to perform its function of supporting the worker, a prima facie entitlement to summary judgment is established." Since defendants neither produced evidence to contest plaintiff's version of the accident not submitted any evidence that the ladder was adequate and properly placed, there exists no issue of fact.

D'Angelo v. Builders Group, 845 N.Y.S.2d 814 (2 ^nd Dept. 11/07)

The plaintiff was injured when he fell from a ladder at a construction site. The Court held defendant failed to prove entitlement to summary judgment dismissing the §240(1) claim since it did not establish plaintiff had access to a properly-placed and adequate safety device or that he was the sole proximate cause of his accident.

Davis v. Brunswick , 52 A.D.3d 1231 (4 ^th Dept. 06/06/08)

Without describing specific facts of the case, the Court held there was a question of fact "whether the ladder failed to provide proper protection, thereby precipitating plaintiff's fall, or whether plaintiff simply lost his balance and fell, taking the ladder with him."

a. Improper Placement or Unsecured Ladders

Whalen v. Exxon Mobil Oil Corp. , 50 A.D.3d 1553 (4 ^th Dept. 04/25/08)

The plaintiff was injured when he fell from an A-frame ladder that he had placed in the closed position against a door. When the door opened, the ladder slid, resulting in the fall. The Court held that the plaintiff had met his initial burden of proving defendants violated §240(1) by failing to ensure the proper placement of the ladder, citing several cases. The Court held that "while the plaintiff may have been negligent in leaning the ladder against the door, plaintiff's conduct cannot be considered the sole proximate cause of the injuries." Even though the ladder was structurally sound, this fact is irrelevant as to the proper placement of the ladder. The §241(6) claim premised upon 23-1.21(b)(9) was also held to be applicable to the facts.

Ranieri v. Holt Const. Corp. , 33 A.D.3d 425, 822 N.Y.S.2d 509 (1 ^st Dept. 10/12/06)

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

Berg v. Albany Ladder , 10 N.Y.3d 902 (Court of Appeals 6/12/08)

The Court affirmed the dismissal of plaintiff's §240(1) claim which involved an injury sustained when he fell from a truck which he was unloading steel trusses from. He alleged that he was standing atop several bundles of trusses about ten feet off the ground when they began to fall. To avoid being crushed by the now falling trusses, plaintiff climbed into the bundle as it toppled to the ground and he suffered physical injuries." "Although plaintiff asserts that the height at which he worked created an elevation-related risk... he failed to produce proof sufficient to create a question of fact regarding whether his fall resulted from the lack of a safety device."

NOTE: In Zimmer v. Chemung County Performing Arts, the Court held that where no safety devices were provided, the defendant, as a matter of law, violates §240(1). However, the plaintiff must still demonstrate that the failure to provide a safety device was a substantial factor in causing his injuries. The Court felt that Berg failed to demonstrate how the failure to provide any safety device was a proximate cause of his accident.

Willard v. Thomas Simone and Son Builders, 45 A.D.3d 1276 (4 ^th Dept. 11/07)

Francis v. Foremost Contracting Corp. , 47 A.D.3d 672 (2 ^nd Dept. 01/15/08)

The plaintiff was injured while attempting to unload a steel beam from a flatbed truck. Initially, he used a cherry picker, but found it was incapable of lifting the beam. He and some co-workers attempted to pry the beam from the truck, when it twisted, struck the plaintiff, knocked him to the ground and then fell upon him. The Appellate Division reinstated plaintiff's §240(1) claim finding "there exists a triable issue of fact as to whether the defendants were obligated to substitute, in place of the cherry picker and the "spike," other devices, such as "hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons or ropes" in order to prevent the beam from falling on top of the injured plaintiff."

Lavore v. Kir Munsey Park , 40 A.D.3d 711 (2 ^nd Dept. 5/08/07)

The plaintiff used his utility truck as an elevated platform so he could reach his work area. He had placed planks across the sides of the truck in order to create the platform. After successfully descending from the platform to the bed of the truck, he put away his tools, removed the planking, placing them in the bed of the truck, and fell as he was then "alighting from the side of the truck to the ground." The Court dismissed the §240(1) claim, stating that a fall from the bed of a truck while in the process of alighting did not give rise to the elevation-related risk that will trigger the Labor Law.

NOTE: A factual distinction was made by the Court between the elevated work platform plaintiff had created on top of the truck, and his fall off of the truck. Since he did not fall in connection with getting up onto, using or getting off of the elevated platform, his injury then amounted to nothing more than alighting from a truck, which is not sufficient to establish a §240(1) claim. See Bond v. York Hunter, 95 N.Y.2d 883, and Toefer v. Long Island RR, 4 N.Y.3d 399.

5. Permanent Stairways and Other Permanent Structures

Cohen v. Columbia University , 44 A.D.3d 533 (1 ^st Dept. 10/07)

Plaintiff, an elevator mechanic, was injured when he fell from a retractable ladder that was affixed to defendant's premises in order to get in and out of the elevator machine room. The Court denied defendant's motion for summary judgment, stating it did not establish a prima facie case that it fulfilled its duty to inspect and maintain the defective ladder. The Court also denied defendant's motion to dismiss the §241(6) claim. Noted by the Court was the holding in Joblon v. Solow, 91 N.Y.2d 457, in which the Court of Appeals held that workers performing repairs may be covered under either statute.

Gelo v. City of New York , 34 A.D.3d 636, 823 N.Y.S.2d 699 (2 ^nd Dept. 11/21/06)

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 A.D.2d 434, and Norton v. Park Plaza, 263 A.D.2d 531.

NOTE: In the First Department case of Brennan v. RCP Assoc., 257 A.D.2d 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 a permanently affixed steel ladder from the roof to the service gratings, located six feet 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 A.D.2d 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.

6. Elevators

Nothing new or novel for 2008.

II. WHAT TYPE OF WORK DOES §240 COVER ?

1. Demolition and Salvage Work

Nothing new or novel for 2008.

2. Repair Work vs. Routine Maintenance or Manufacturing

Gallello v. MARJ Distributors Inc. , 50 A.D.3d 734 (2 ^nd Dept. 04/08/08)

The plaintiff's §240(1) claim was dismissed upon a determination that the work he was performing - detaching a transformer from the wires and affixing it to a ceiling as part of repairing on a neon sign - constituted maintenance work and, therefore, was not covered by the statute. Likewise, the §241(6) claim was dismissed since the work did not amount to construction, demolition or excavation. The §200 claim was dismissed because there was no showing that the defendant had notice of the dangerous condition. "Where . . . a plaintiff's injuries stem not from the manner in which the work was being performed, but rather from a dangerous condition on the premises, 'an owner or manager of real property' may be liable . . . under Labor Law §200 if it has control over the worksite and actual or constructive notice of the dangerous condition," neither of which were present here.

Kun Yong Ke v. Oversea Chinese Mission , 49 A.D.3d 508 (2 ^nd Dept. 03/04/08)

Plaintiff's work of repairing a leak on the church's roof, from which he allegedly fell, did constitute work covered by §241(1). However, the Court found that there still existed a question of fact as to whether the ladder the plaintiff was supplied with was adequate.

English v. City of New York , 43 A.D.3d 811 (2 ^ndDept. 09/07)

The plaintiff, a supervising engineer, fell while walking on a narrow beam between two catwalks. It was established that, at the time of his accident, he was accompanying a maintenance worker on his staff to investigate a missing fan belt on a heating/cooling unit. The Court held that because the nature of the work he was performing was routine maintenance, and not one of the enumerated activities covered under §240(1), that claim had to be dismissed. Likewise, the work he was performing was not in connection with construction, demolition or excavation work and the §241(6) claim had to be dismissed.

Holler v. City of New York , 38 A.D.3d 606 (2 ^nd Dept. 03/13/07)

The plaintiff, a stage hand at the Brooklyn Academy of Music, was injured when he was struck by a falling object while assisting in the installation of a hoist motor for the lifting of scenery at a theatre in preparation for a new show. The Court concluded that the type of work being performed was more in the nature of routine maintenance and did not involve a significant physical change to the configuration or make-up of the building or structure for purposes of §240(1).

Cordero v. SL Green Realty Corp , 38 A.D.3d 202 (1 ^st Dept. 03/01/07)

Plaintiff, whose work was described as replacing worn out metal slats in a roll down motorized security gate, was held to be performing routine maintenance work that was not covered under §240(1) or §241(6).

3. Alteration Work

Rhodes-Evans v. 111 Chelsea LLC , 44 A.D.3d 430, 843 N.Y.S.3d 237 (1 ^st Dept. 10/07)

The plaintiff was injured when the ladder she was on slipped, temporarily causing her to grab onto suspended cables until she could regain her balance. Although she did not fall, she alleged a back injury. Her job was to splice a new fiber optic cable into the building's existing cable. The Court held that the work she was performing did not constitute an alteration of either the building or the cable network as required under Joblon v. Solow, 91 N.Y.2d 457. In a dissenting opinion, Judge Mazzarelli took the position that splicing fiber optic cables for the installation of new telephone service to a tenant in the building does constitute an alteration. In support, she referred to Weininger v. Hagedorn, 91 N.Y.2d 958, (stringing communication cables to a ceiling), Campbell v. City of New York, 32 A.D.3d 703, (splicing an amplifier box into a cable television line) and Sarigul v. New York Tel, 4 A.D.3d 168, leave denied 3 N.Y.3d 606, (stripping installation from an existing cable wire was an alteration).

Widawski v. 217 Elizabeth Street Corp. , 40 A.D.3d 483 (1 ^st Dept. 5/24/07)

Plaintiff and a co-worker were hired to move an eight foot tall bakery mixer. The mixer was bolted to the floor and electrically connected to a box in the ceiling. Plaintiff claims that he fell from a ladder when it slipped as he was trying to disconnect the electrical conduits from the overhead junction box. The Court concluded that the work the plaintiff was performing did not amount to alteration type work under §240(1) nor construction work under §241(6). Distinguishing Panek v. County of Albany, 99 N.Y.2d 452, the Court noted that Panek involved removing two 200 pound air handlers bolted to a second floor ceiling, which required two days of preparatory work and was part of a major renovation project.

4. Painting

Nothing new or novel for 2008.

5. Cleaning Work

Broggy v. Rockefeller Group, 30 N.Y.3d 204 (07/02/07)

The Court has ruled that cleaning, as that term is used within §240(1), "is expressly afforded protection under §240(1), whether or not incidental to any other enumerated activity." "The crucial consideration under §240(1) is not whether the cleaning is taking place as part of a construction, demolition, or repair project, or is incidental to another activity protected under §240(1); or whether a window's exterior or interior is being cleaned. Rather, liability turns on whether a particular window washing task creates an elevation-related risk of the kind that the safety devices listed in §240(1) protect against." Plaintiff, a commercial window washer, and two co-workers were washing the windows on the 8th floor of defendant's building. The room where the accident occurred had windows that were approximately 4 feet wide and 6 feet tall, extending up to the ten foot high ceiling. Plaintiff testified that he cleaned all the windows in the room but one that was located directly behind a large office desk. He tried to move the desk but it was too heavy, so he climbed on the desk to wash this window. While doing so, a co-worker washing the exterior portion of the windows, protected by safety straps, motioned that he wanted to re-enter the building through the window. As plaintiff opened the window, it slammed shut, causing him to react in such a manner that he lost his balance and fell to the floor. The Appellate Division, Second Department dismissed the §240(1) claim on the basis that cleaning activities must be related to a building, construction, demolition or repair project. The Court of Appeals stated in Smith v. Shell, 85 N.Y.2d 1000, and Brown v. Christopher, 87 N.Y.2d 930, that it did not preclude cleaning activities from the scope of §240(1) on the basis that the window cleaning was not part of construction, demolition or repair work. In fact, they cited Bauer v. Female Academy, 97 N.Y.2d 445, wherein they specifically "allowed a §240(1) claim to go forward where the plaintiff fell while cleaning the exterior of a third story window at a school." Mindful that Bauer dealt with cleaning the exterior windows of a building, the Courts stated, "we see no reason to limit Bauer to its facts - exterior window washing of a non-domestic character - as defendant's urge." While interior window washing may not routinely entail the elevation-related risks that exterior window washing almost invariably poses, assigning liability under §240(1) on this basis would create an arbitrary dividing line unfaithful to legislative intent.

The Court, however, affirmed the Appellate Division's dismissal on the alternate grounds cited by the Court, that is, defendant's failure to establish a need for any safety devices affording protection from the effects of gravity for the work he was required to do. The plaintiff here failed to establish that he stood on the desk because he was obligated to work at an elevation to wash the interior of the windows.

NOTE: The Court of Appeals decision in Brown v. Christopher, has been cited as support for both views - that cleaning is covered under §240(1), as well as that cleaning is not covered under §240(1) unless associated with one of the other covered activities. Even after Bauer clearly stated that §240(1) covers window washers, even if the activity is not done in connection with construction, excavation, demolition, etc., there still persisted the argument that §240(1) did not apply to mere cleaning activities. This decision should once and for all end this debate. Cleaning is a good thing.

Ferluckaj v. Goldman Sacks & Co. , 50 A.D.3d 359 (1 ^st Dept. 4/10/08)

This eight page decision, with three separate opinions, discusses several major issues, the resolution of which gives rise to differing opinions, largely with regard to which party had the burden of proof. Several key facts, according to all the judges, had not been resolved on the moving papers; hence, the party who has the burden of proof on these issues will bear the consequence.

Plaintiff, a window washer, was injured when she accidentally stepped off a desk while cleaning windows on the 29 ^th floor of a building leased to Goldman. Plaintiff's employer, American Building Maintenance Co. (ABM), was hired by the building's owner to supply cleaning services, including window washing every three months and "the initial cleaning of all interior windows at no extra charge prior to tenant occupancy." Goldman did, from time to time, hire ABM for pantry maintenance and carpet care, but not for window cleaning.

The record was unclear as to when Goldman initially took occupancy of the floor. Goldman had contracted with a construction company to perform the build-out of several floors leased by Goldman in the building. The majority of the construction work was completed before plaintiff's accident, although minor punch-list work was still outstanding. The windows rose to the ceiling, which was 9 feet high. Plaintiff was equipped with only a hand cloth to clean the windows. She claimed she was cleaning construction dust off the windows. She was aware that there was a step stool with two steps in a supply closet maintained by ABM in the building, but she never asked to use it. She stated she fell off the desk as she was moving laterally along the width of the window and accidentally stepped off.

According to the majority, plaintiff's work falls within the § 240(1) protective cloak, pursuant to Broggy v. Rockefeller, 8 N.Y.3d 675. The desk was not an adequate safety device for cleaning windows and she was given no other devices. Impliedly, the Court felt plaintiff's moving papers adequately stated that the lack of safety devices was a proximate cause of her accident. Defendant had the burden on the "sole proximate cause defense," since plaintiff's version did make out a prima facie case. Defendants failed to meet this burden because the record was unclear on 1) whether the step stool would have been provided if the plaintiff asked for it; and 2) whether it was adequate to reach the top of the windows. Summary judgment in favor of the plaintiff against Goldman was denied since there was an issue as to whether Goldman could be liable under §240. It did not contract with ABM to do the cleaning, it was not an owner, it was not acting as the agent of the owner and it had no control over the plaintiff. However, plaintiff could be found to have been engaged in cleaning up construction debris, which is part of the construction activity under the control of Goldman. Goldman did not meet its prima facie burden of establishing it had nothing to do with the plaintiff's work. The contract for the window washing services had two clauses: 1) the routine cleaning every three months as part of the lease; and 2) the initial cleaning before occupancy. No one explained under which provision plaintiff was performing her work. The Court dismissed the plaintiff's §241(6) claim, finding 12 NYCRR 23-1.15 and 1.16 did not apply. However, the Court allowed plaintiff's §202 claim (the window washer statute), since the statute requires owners, lessees, agents and managers of buildings and contractors to provide "safe means for the cleaning of the windows and of exterior surfaces." This statute does apply to cleaning of interior windows.

In a concurring opinion, Judge Nardelli agrees with the outcome, but for different reasons. His analysis starts with the Broggy decision and the Court's holding in that case that "liability turns on whether a particular window washing task creates an elevation-related risk of the kind that the safety devices listed in section 240(1) protects against. This is the plaintiff's burden and, to Judge Nardelli, the evidence was not conclusive that the statute was violated and/or that plaintiff's own acts were not the sole cause. He believes this is a burden imposed upon the plaintiff as part of her requirement to demonstrate that the task of washing these windows created an elevation-related risk and that the owner and contractor did not provide adequate safety devices.

Judge Tom wrote a dissenting opinion, stating that Goldman should have been granted summary judgment dismissing all claims as not being a party liable under the statute. Whether the plaintiff was performing work under the clause of the lease providing cleaning every three months or under the provision of cleaning one time before occupancy does not affect the conclusion of whether Goldman was a party who hired and/or controlled plaintiff's work. The sole theory against Goldman, according to Judge Tom, is that the work plaintiff was performing was "incidental" to the construction company hired by Goldman. On the motion, plaintiff acknowledges Goldman had not yet moved onto the 29 ^th floor; its general contractor was still performing work, demonstrating that Goldman had no control over this work which was being performed as part of the lease; and that it constituted an obligation of the landlord, not Goldman. This shifts the burden to the plaintiff to produce evidence to clearly show Goldman's involvement with her work.

Hill v. Stahl , 49 A.D.2d 438 (1 ^st Dept. 03/08)

Plaintiff, a commercial window washer, sustained a torn rotator cuff injury while he was on a motorized scaffold washing the windows of a building owned by defendant. The scaffold's motor was powered by a standard 110 volt electrical outlet. During renovation of the building, the 110 outlet was mistakenly wired with 220 volts. This caused the scaffold motor to overheat and lock its brakes open. The scaffold began to descend rapidly with plaintiff's safety harness attached to a "rope grab" which locked, causing plaintiff's feet to be separated from the descending scaffold. In a panic, plaintiff reached up to unlatch the clip, resulting in his injury. Following precedent, the Court found §240(1) applicable to the work the plaintiff was performing since it requires a device to shield the worker "from harm directly flowing from the application of the force of gravity to an object or person." This was not accomplished because the outlet was set at improper voltage. The plaintiff was not the sole cause of the accident in failing to operate the harness properly because that event was occasioned by the incorrect wiring of the outlets. At most, it was contributory negligence, which is not a defense.

Fischetto v. LB 745 LLC, York , 43 A.D.3d 810 (1 ^st Dept. 09/07)

The plaintiff was injured when he fell while performing cleaning work. The lower court granted defendant's motion for dismissal on the basis that plaintiff was only performing routine maintenance, which was not incidental to any of the enumerated activities under §240(1). The First Department reversed the lower court on the basis of Broggy v. Rockefeller, 8 N.Y.3d 675, which held that liability turns on whether a particular window washing task creates an elevation-related risk of the kind that the safety devices listed in §240(1) protects against.

6. Pointing

Nothing new or novel in 2008.

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. 10/24/06)

The plaintiff was injured when he fell some twenty feet from the ladder he was on while 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 family 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, then the performance of such work is an activity governed by §240(1). Lombardi v. Stout, 80 N.Y.2d 290. In this factual setting, the defendant, Best Modular, was hired to erect a modular home on the homeowner's lot. Best Modular retained the defendant Lawn Ranger to remove trees and 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 became even more perplexing when the Court found that plaintiff had set forth a valid §240(6) claim premised upon 12 NYCRR 23-1.21(b)(4)(iv), which requires that ladders that are more than ten feet high have a mechanical means for securing the upper part of the ladder from side slip and the lower portion to either be held in place by a person or secured to anchorage. Because §241(6) 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 that plaintiff's work involved construction of a modular home and/or excavation that was necessary for the structure's erection?

Rivera v. Santos , 35 A.D.3d 700, 827 N.Y.S.2d 222 (2 ^nd Dept. 12/19/06)

The plaintiff was injured while he and a co-worker were attempting to cut down a large tree on property owned by defendant. Plaintiff was on the ground attempting to lower a branch that was tied off with a rope. He 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 - was not governed by §240(1). The work was not an integral and necessary part of the overall plan to eventually build a structure after the land was cleared because the tree removal was completed a few months before any construction work was commenced. The defendant's contract with plaintiff's employer was readily distinguishable from the other contracts defendant entered into for the construction work itself.

White v. General Motors Corp. , 38 A.D.3d 1193 (4 ^th Dept. 3/16/07)

Plaintiff was employed at a construction site on defendant's complex. He was directed by the project site manager to go to a different location in the complex and retrieve a gas regulator from another building that was not under construction, so that it could be used on the building under construction. As the plaintiff was in the building walking to the location of the gas regulator, he fell through an unprotected opening. The Court agreed with the plaintiff that, under these circumstances, the activity he was performing did fall within §240(1), even though the building where the accident occurred was not under construction. The Court refused to consider his task as a separate, distinguishable activity from the larger construction project.

IV. BUILDING OR STRUCTURE

Campbell v. City of New York , 31 A.D.3d 594, 819 N.Y.S.2d 294 (1 ^st Dept. 9/14/06)

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 for that matter, that he was going to climb its pole, was not a legal basis for dismissal of the common law negligence claim since its duty under Basso v. Miller, 40 N.Y.2d 233, was to maintain the pole for foreseeable users, whether they are authorized or unauthorized. The Court also determined that the truck rolling down the hill was not an unforeseeable superseding event, as a matter of law. The Court noted that 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. Foreseeability, as to the particular chain of events that ultimately leads to the need for 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 - that the pole failed to comply with industry standards (which was based only upon an examination of photographs) - 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

Stringer v. Musacchia , 11 N.Y.3d 212 (10/21/08)

The Court affirmed this 3:2 Appellate Division decision, which held the plaintiff was not a member of the class of people section 240(1) was intended to protect. Plaintiff, an avid hunter and archer from Georgia, was allowed to participate in a celebrity turkey hunt on defendant's property after he agreed to build a shed for defendant in the afternoons following the morning hunting session. On one afternoon he fell from a ladder while working on the shed. The court noted that the issue involved whether the plaintiff was an employee or a volunteer. However, "we have not had the opportunity to elaborate on what differentiates an employee from a volunteer," in the past. Upon analyzing the definitions contained in the Labor Law, the court held that "... an individual does not become an employee covered by Labor Law section 240(1) by providing casual, uncompensated assistance to another person with a repair or construction project in an informal arrangement that does not give rise to mutual duties and obligations between them and bears none of the traditional hallmarks of an employment relationship." Applying this standard to the facts led the Court to conclude that the plaintiff was not an employee but a volunteer.

Aloise v. Saulo , 51 A.D.3d 829, 858 N.Y.S.2d 355 (2 ^nd Dept. 05/20/08)

Defendant argued that the plaintiff's Labor Law claims should be dismissed on the basis that he was not an employee, but a volunteer. The rule, in this regard, is that a plaintiff must "demonstrate that he/she was both permitted or suffered to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent." See, Whalen v. Warwick, 47 N.Y.2d 970. The relationship which must be established is that a party was permitted or suffered to work in fulfillment of an obligation, even if the benefit bestowed in exchange for the work was non-monetary in nature, citing Labor Law Section 2[5] and [7], as well as Whelen, supra. Here, the defendant admitted that the plaintiff was to perform the construction work and, in exchange, he would provide architectural services for a building that the plaintiff was planning to renovate.

Bastidas v. EPIC Realty , 47 A.D.3d 861 (2 ^nd Dept. 01/29/08)

The Court denied all of the parties' motions on the basis there was an issue of fact as to the plaintiff's status as an employee. Defendant claimed he showed up unexpectedly and was allowed to work with the mere expectation of payment from one of defendant's superintendents. Plaintiff claimed he accepted a job under an implied agreement to be paid by a superintendent for whom he had previously worked. Both contentions raised legitimate issues of fact.

Coombs v. Izzo General Contracting , 49 A.D.3d 468 (1 ^st Dept. 3/27/08)

The Court dismissed plaintiff's Labor Law claim on the basis that he was a superintendent of a building undergoing demolition and construction, but he was not within the class of persons protected under the Labor Law. "Although an individual need not actually be engaged in physical labor to be entitled to coverage under the Labor Law, plaintiff did not perform work integral or necessary to the completion of the construction project, nor was he a member of a team that undertook an enumerated activity under a construction contract."

VI. WHO IS RESPONSIBLE UNDER §240?

1. CONTRACTORS AND OWNERS AND THEIR AGENTS

Sanatass v. Consolidated Investing Company, 10 N.Y.3d 333 (Court of Appeals 4/24/08)

The Court reaffirmed its long-standing holding that "a property owner is liable for a violation of Labor Law §240(1) that proximately caused injury to a worker even though a tenant of the building contracted for the work without the owners knowledge." The issue involved in this case deals with whether an owner of a building who leases the premises to a tenant, whereby the lease requires the landlord's prior written consent to perform any work, should be held liable under §240(1) when the tenant violates the term of the lease without any knowledge of the owner. In practical terms, the issue involves who should suffer the consequences of the tenant's breach of the lease - the injured worker or the landlord. In this 5:2 decision, the Court re-emphasized that "the legislative history reveals that this amendment was intended to place 'ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractors rather than on the workers themselves." To achieve the purposes behind the legislative intent, the Court referred to the long-standing, but recently de-emphasized principal that " §240(1) is to be construed as liberally as may be for the accomplishment of the purpose for which it was thus framed." These two principles alone would have been sufficient to justify the Court's opinion that when the owners lack of knowledge is pitted against the injured worker who did not receive adequate safety devices, the worker will win. Instead of simply relying on this principal, the Court went on to cite its prior holdings and justification for this conclusion. In 1983, the Court of appeals affirmed the lower court holding in Celestine v. City of New York, 59 N.Y.2d 938, which held that the Long Island Railroad Company, the owner of the property, was responsible for the plaintiff's injuries under §241(6), even though it was the City of New York, to whom LICO had given an easement, which was actually the entity that initiated the construction project giving rise to plaintiff's injuries. There, the Court stated that the actual control over the work was not an element under the Labor Law. Thus, titled owners to property were absolutely liable, even in the absence of any control.

In Gordon v. Eastern Railway, a similar argument was made by the owner of the property who had leased the entire premises to the plaintiff's employer, rejecting the argument of the title owner that he did not have control over the project; had no knowledge it was taking place; received no additional benefit from the work plaintiff was performing; and had no knowledge that the work was even taking place. The reasoning is that the statute makes the owner of the property absolutely liable and the duty cannot be escaped by delegating it to another. This is what the Court meant in the Blake v. Neighborhood Housing Services decision, 1 N.Y.3d 280, when it characterized the duty imposed upon owners, contactors and their agents under the Labor Law.

Additionally, in 1997, the Court held in Coleman v. City of New York, 91 N.Y.2d 821, that "it was for the legislature, not this court, to carve out exceptions" to the Labor Law. Here, the defendants were attempting to have the Court "create a lack-of-notice exception to an owner's liability." This is the role of the legislature, not the Courts.

The Court also addressed the dissents' reliance on Abbatiello v. Lancaster Studio, 3 N.Y.3d 46, in which it held that the owner was not responsible for a cable TV technician's injury because of a statute which removed any form of control or authority that could be exercised by any owner for this type of work. Since the statute created a right belonging to all tenants and cable TV providers, which the owner could not, under any circumstances, interfere with, Abbatiello presented the unique circumstance in which the legislature completely removed the property owner's rights in this regard. Finally, the Court held it would not accept the defendant's offer to insulate an owner from liability by carving out such an exception. "To allow owners to do so by the simple expedient of a lease provision, as suggested by the dissent, would eviscerate the strict liability protection afforded by the Labor Law."

The dissent by Judge Smith, Judge Reed concurring, voted in favor of the defendant primarily on the basis that they did "not see how the statutory goal of preventing work place accidents is advanced by holding a landlord liable in a situation like this." In other words, they felt the Court should create an exception based upon how they felt was the best way to protect workers.

NOTE: Judge Smith and Judge Reed are correct that this is a literal, mechanical reading of the statute in that "all owners" means exactly what it says. However, this has consistently been held by the Court of Appeals to have been the legislative intent from the moment the statute was enacted. See, Allen v. Cloutier, 44 N.Y.2d 290. Obviously, they have no reluctance in creating judicial legislation.

Historically, courts have explained this issue in terms of the statute imposing liability upon those parties who, at some point in time, had the ultimate control over the property. Should the owner decide to give up this control to another entity, whether by way of contract, lease, easement or other conveyance, it will not alleviate this statutory, non-delegable duty.

See: Subsequent decision by Justice Gische in this case on August 8, 2008.

Nasuro v. PI Assoc. , 49 A.D.3d 829 (2 ^nd Dept. 3/25/08)

Defendant was a prime contractor who had hired a subcontractor, and it was the subcontractor's employee who sustained an injury when he fell a distance of 15 feet from an opening in the basement floor to the floor of the sub-basement below. The Court affirmed summary judgment to the plaintiff against the prime contractor, holding that under the facts of the case, the defendant was an agent of the owner and had a non-delegable duty to provide plaintiff with appropriate safety devices.

NOTE: This decision provides a good explanation for when and why a prime contractor can be held liable under §240(1). "A prime contractor hired for a specific project is subject to liability under Labor Law §240 as a statutory agent of the owner or general contractor only if it has been delegated the work in which plaintiff was engaged at the time of his injury and is, therefore, responsible for the work giving rise to the duties referred to in and imposed by [the statute]." Coque v. Wild Flower Estates, 31 A.D.3d 484, Russin v. Picciano, 54 N.Y.2d 311. "The non-delegable liability imposed by Labor Law §240(1) attaches only to a contractor that has the authority to supervise or control the particular work in which the plaintiff was engaged at the time of his injury." Coque, supra. "Once an entity becomes an agent under the Labor Law it cannot escape liability to an injured plaintiff by delegating the work to another entity." McGlynn v. Brooklyn Hospital - Caledonian Hospital, 209 A.D.2d 486.

Pino v. Irvington Union Free School Dist. , 43 A.D.3d 1130 (2 ^nd Dept. 09/07)

At issue was whether a construction manager could be considered a contractor, owner or agent for purposes of vicarious liability under §240(1) or §241. The Court cited Walls v. Turner, 4 N.Y.3d 861, and other cases, which stand for the proposition that a construction manager may be held liable for a worker's injuries under the Labor Law if it "had the ability to control the activity which brought about the injury."

In this case, the construction manager's contract stated it "assumed the school district's authority, and responsibility, to demand compliance with applicable safety requirements and to stop the work upon detecting any unsafe practice or condition." Thus, the defendant did assume, and was assigned thereby, the owner's duty under the Labor Law, thereby becoming an agent of the owner.

Predmore v. EJ Construction Group , 857 N.Y.S.2d 864 (4 ^th Dept. 05/02/08)

The Court reinstated plaintiff's Labor Law and common law negligence claims against one of the subcontractors, holding that the defendant failed to meet its initial burden of establishing, as a matter of law, that it was not an agent of either the owner or the general contractor. Thus, there are triable issues of fact as to whether defendant had the authority to supervise or control plaintiff or the injury-producing work.

Soltes v. Brentwood Union Free School , 47 A.D.3d 804 (2 ^nd Dept. 01/22/08)

Finding several issues of fact, the Court denied both parties' motions for summary judgment. On the §240(1) claim, the factual issues as to adequate safety devices being provided, and defendant's position as an agent of the property owner with the authority to supervise and control the work, as alleged by plaintiff, needed to be resolved. Plaintiff also raised a triable issue of fact on §241(6) concerning whether the scaffold complied with 12 NYCRR 23-5.3(f).

Ferluckaj v. Goldman Sacks & Co. , 50 A.D.3d 359 (1 ^st Dept. 04/10/08)

Umanzor v. Charles Hoffer Painting and Wallpapering, 48 A.D.3d 553 (2 ^ndDept. 02/13/08)

The Court dismissed plaintiff's §241(1) claim against defendant upon its prima facie proof that it was not an owner, contractor, or agent for purposes for liability under §241(1).

VII. PROCEDURAL ISSUES

1. Summary Judgment Motions Under §240

Tonaj v. ABC Carpet Co., Inc. , 43 A.D.3d 337 (1 ^st Dept. 08/07)

Two plaintiffs who had sustained injuries in a fall from a scaffold were granted summary judgment on liability and preceded to trial on damages only. One plaintiff received $2,500,000for past pain and suffering, and $5,000,000 for future pain and suffering; the other plaintiff received $2,500,000for past pain and suffering and $100,000for past medical expenses. On appeal, the Court reversed the granting of summary judgment to the plaintiffs, finding several issues of fact as to which scaffolds plaintiffs were instructed to use; whether they used the correct scaffolds; and the manner in which they used them. As to the damages awarded, the Court held that if liability was established, then damages were to be retried unless the first plaintiff agreed to a judgment of $2,000,000for past pain and suffering (down from $2,500,000) and $2,000,000 for future pain and suffering (down from $5,000,000). Damages for plaintiff number two were reversed unless he agreed to $500,000 for past pain and suffering (down from $2,500,000) and $56,975.00 for past medical expenses (down from $100,000.00).

Eisenstein v. Board of Managers, 43 A.D.3d 987 (2 ^nd Dept. 09/07)

Plaintiff was injured when he fell from a ladder while taping sheetrock. The Supreme Court granted defendant's motion dismissing plaintiff's claim on the same day the Second Department issued its decision in Fitzpatrick v. State, 25 A.D.3d 755, which clarified what constituted repair work under §240(1), as it relates to lighting fixtures. On this basis, the Supreme Court subsequently exercised its discretion in granting plaintiff's request for leave to renew, and upon the authority of Fitzpatrick, vacated its prior ruling dismissing plaintiff's §240(1) claim.

NOTE: In Fitzpatrick the State argued that the immediate task the plaintiff was performing was simply replacing a photocell sensor by screwing it into an already existing socket. The Court held that while the task may not qualify as repair work, the task was only one small part of a larger, overall, project to repair several light posts in defendant's parking lots and, therefore, it was covered by §240(1), citing Pratts v. Port Authority, 100 N.Y.2d 878.

Salon v. Millinery Syndicate, Inc. , 47 A.D.3d 914 (2 ^nd Dept. 1/29/08)

The Court affirmed summary judgment to the plaintiff on issues of liability, stating plaintiff had demonstrated a prima facie case of falling from an unsecured ladder. Defendants, however, did not raise a triable issue of fact. "Furthermore, the defendants' 'mere hope that further discovery will reveal something helpful to their case provides no basis for postponing the determination of the plaintiff's motion.'" ( Public Administrator of Kings County v. Tomassetti, 271 A.D.2d 515, 706 NYS 2d 350; see Lopez v. W.S. Distribution, 34 A.D.3d 759, 825 N.Y.S.2d 516).

Sharoh v. Hourihan , 50 A.D.3d 665 (2 ^nd Dept. 4/1/08)

Without any discussion of the underlying facts in the case, the Court affirmed dismissal of the complaint against one defendant, but not the other.

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

Cody v. State, 52 A.D.3d 930 (3 ^rd Dept. 6/5/08)

Plaintiff was injured when he stepped onto an unsecured sheet of plywood he was using to cover a stairwell, causing it to slip, and allowing him to fall through the opening. Reversing the lower court's holding in favor of the defendant, the Third Department held that "A violation occurs where a scaffold or elevated platform is inadequate in and of itself to protect workers against the elevation-related hazards encountered while assembling or dismantling that device and it is the only safety device supplied or any additional safety devices is also inadequate," citing several cases. "In addition, where a violation of §240(1) serves as a proximate cause of the injury, then the worker's own conduct, even if negligent, cannot be deemed solely to blame for it," citing Blake. "The fact that claimant was constructing the platform obviated the need to protect him from the falling hazard posed by the unsecured sheet of plywood."

Pichardo v. Urban Renaissance , 857 N.Y.S.2d 144 (4 ^th Dept. 5/8/2008)

The plaintiff was injured when he fell through a six foot wide debris hole cut into the floor of a building being demolished. Defendants produced testimony from the general contractor's president that "usually I don't let them make the hole" but he could not recall whether there was, in fact, a hole in the floor. The Court reversed and granted summary judgment to plaintiff on the §240(1) claim, stating that this testimony did not set forth a conflicting theory, only mere speculation as to how the accident may have occurred. Moreover, his testimony was held to be incredible in that he was at the site every day and could not remember a six foot wide hole in the floor. The Court also granted summary judgment on the §241(6) claim, stating that the defendant failed to produce sufficient evidence to raise a triable issue of fact on plaintiff's comparative negligence.

Balbuena v. New York Stock Exchange , 49 A.D.3d 374 (1 ^st Dept. 03/13/08)

The NYSE hired defendant AMEC to oversee renovation of its premises. AMEC subcontracted with defendant, Regional, to erect a sign and scaffold. Regional subcontracted with B&C to physically erect and dismantle the scaffold. During the dismantling of the scaffold, plaintiff, employed by AMEC, was directed to use the scaffold to wash down the building's walls. He fell when a plank, no longer secured, overturned. The Court held there was compelling evidence that plaintiff was instructed by a supervisor to use the scaffold, that there was no evidence of any warnings or that plaintiff was informed or knew that the scaffold was partially dismantled. There was no evidence of instructions for him to use other equipment. This, the Court held, made out an entitlement to judgment in favor of plaintiff and defendant raised no triable issue of fact. The Court held there was an issue of fact as to the contractual indemnity between NYSE and Regional. The issue involved whether plaintiff's injury arose out of, resulted from, or was incidental to, the work required under the contract.

Madalinski v. Structure-Tone, Inc. , 47 A.D.3d 687 (2 ^nd Dept. 1/15/08)

The Court held defendants failed to submit evidence sufficient to raise a question of fact to defeat plaintiff's entitlement to summary judgment. Plaintiff turned on a high pressure water hose which caused him to fall off a scaffold that lacked railings. The Court rejected defense evidence submitted in opposition from two witnesses who lacked "personal knowledge of the facts of the accident or the condition of the scaffold at the time of the accident." This was hearsay, surmise and conjecture. Also rejected was defendant's accident report because it did not qualify as a business record.

Santo v. Scro , 43 A.D.3d 897 ( 2 ^nd Dept. 09/07)

Plaintiff was injured when he fell from a scaffold while installing light fixtures. The defendant moved for summary judgment upon testimony that he denied the plaintiff's employer permission to use the scaffold. The plaintiff testified he did not use the extension ladder provided by his employer because it was too flimsy and there was no one available to secure the bottom of the ladder. The Court reversed the lower court's dismissal of plaintiff's §240(1) claim, stating the defendants failed to establish a prima facie case for dismissal. Here, the proof failed to establish that the extension ladder brought by plaintiff's employer was adequate or that the scaffold he fell from was an adequate safety device, or that the plaintiff was a recalcitrant worker, which requires proof of "immediate, specific instructions to use an actually available safety device or to avoid using a particular unsafe device."

Mentesana v. Bernard Janowitz Const. Corp. , 843 N.Y.S.2d 386 (2 ^nd Dept. 10/07)

Plaintiff was injured while he was looking for a certain piece of steel located on a truck bed at a construction site. At the same time, a co-worker was hoisting a steel I-beam that broke loose and fell, hitting another I-beam which, in turn, crushed plaintiff's finger. The crane operator testified the plaintiff improperly attached the I-beam to the hoist, knew it was unsafe, directed the crane operator to lift it and that it fell when it was only one to two feet above the bed of the truck. Plaintiff's version was significantly different, thus creating several issues of fact.

3. Breach of the Statute

Garlow v. Chappaqua Central School , 38 A.D.3d 712 (2 ^ndDept. 03/20/07)

The plaintiff, an ironworker, fell approximately 16 feet from the top of a concrete wall. Although he was wearing a safety harness and lanyard, it was not tied off. Plaintiff claims there were no safety cables or safety lines nearby and defendants argued that plaintiff should have asked the safety crew to install a safety cable. After dismissing plaintiff's §200 and §241(6) claims, the Court stated there was a question of fact as to whether or not safety devices were available and/or adequate and, if so, whether the plaintiff disregarded the safety devices that were available.

NOTE: If the decision accurately described the defendant's argument that "the plaintiff should have asked the safety crew to install a safety cable," isn't §240 violated on the basis that the safety cables were not "constructed, placed and operated as to give proper protection." I trust there were other facts in the record which would explain why the Court concluded there was an issue of fact in this regard.

Durkin v. Lone Island Power, 37 A.D.3d 400 (2 ^nd Dept. 02/6/07)

The Court affirmed the denial of both plaintiff's and defendant's motions for summary judgment. "Triable issues of fact exist as to whether the subject ladder shifted or otherwise provided the plaintiff's decedent with improper protection, and, if so, whether the ladder shifted as a subsequent effect or a preceding cause of decedent's fall." Defendant's motion was denied since a jury could conclude that decedent's actions, and not a statutory violation, were the sole proximate cause of his death.

4. Unwitnessed Accidents

Woszczyna v. BJW Associates , 31 A.D.3d 754, 820 N.Y.S.2d 289 (2 ^nd Dept. 07/25/06)

The Court reversed summary judgment in favor of the plaintiff and required a trial after finding that the plaintiff's credibility was at issue with respect to the manner in which the accident occurred. 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.

VIII. PROXIMATE CAUSE

Cohen v. Memorial Sloan-Kettering Cancer Center, 50 A.D.3d 227, 850 N.Y.S.2d 435 (1 ^st Dept. 02/05/08)

This 3:2 decision centers around two current, hotly debated, issues under Labor Law §240(1): Can a plaintiff prevail on a §240(1) claim when there is no defect in the safety device; and, does a plaintiff need to demonstrate what safety device was required in order to prevent the accident from occurring? Here, the plaintiff, an electrician, was installing metal racks into the ceiling of a room within defendant's hospital which was under renovation. The plaintiff was only six feet tall and the work needed to be done at a height of nine feet. The plaintiff was using a standard A-frame ladder which was in no way defective. After moving the ladder several times to follow the path of the necessary work, the plaintiff reached a corner in the room where some metal pipes protruded from the wall. It was undisputed that in order to reach the necessary work, the ladder had to be placed in front of the projecting pipes, which interfered with the use of the first step on the ladder and required the plaintiff to step from the second step directly to the floor while descending. After performing his work on the ladder, and while descending it, the plaintiff's foot became wedged between the second rung of the ladder and one of the pipes directly behind him as he was attempting to step to the floor below. His foot became caught and he strained his knee and fell to the floor. The majority held that the plaintiff demonstrated his fall was proximately caused by his inability to step down the ladder one rung at a time due to the absence of a safety device, which would have allowed him a safe descent. Despite the ladder being non-defective, the majority held it was not appropriate for the task required of plaintiff because of the location of the pipes, which was only place the ladder could be positioned. Plaintiff pointed out that a different method was necessary to safely do the work, such as a scaffold. In a lengthy dissent based heavily upon the minority's interpretation of Nieves v. 5 Boro, 93 N.Y.2d 914, the Court felt that plaintiff's accident had nothing to do with performing elevation-related work, that the ladder was not defective and the cause of the accident was the protrusion of the pipes, which is a hazard unassociated with performing elevation-related work. Nieves involved a plaintiff stepping off the last rung of a step-ladder onto a tarp covered floor. As he did so, he accidentally stepped onto a portable light that was covered over by the tarp, causing him to fall to the floor. There, the Court of Appeals held plaintiff's accident did not involve an elevation-related risk, but was a tripping hazard associated with non-elevation-related work. The minority also cited Melber, 91 N.Y.2d 761, where the Court found that the plaintiff, who was standing on stilts, attempted to walk down a hallway rather than take the stilts off in order to retrieve a tool. In that case, the Court of Appeals pointed out there was nothing inadequate about the stilts; they worked fine for the performance of plaintiff's work, but when the plaintiff attempted to use them merely to walk down a hallway, his accident was not related to elevation-related work. The plaintiff could have performed the task by removing the stilts before leaving his assigned work area.

NOTE: This case provides a good backdrop for arguments on both sides of the issue. No one is disputing the facts, only how the facts fit into the theory of liability under §240(1). The majority focused their attention on the statute's requirements not just to provide an adequate ladder, but the requirement that the ladder be properly erected and placed. While the ladder was not defective, it could not be adequately placed to provide protection for climbing and descending without creating the danger caused by the protruding pipes, which prevented a normal, safe descent. This was the wrong tool for the job. Something more was needed due to the circumstances created by the presence of the pipes. While the injury may have been caused by the plaintiff's knee being twisted while he was still partially on the second rung - and presumably not by his impact with the floor - it is still directly related to the forces of gravity. In Gordon v. Eastern Railway (plaintiff fell from a ladder while using a sandblasting gun and sustained abrasion-type injuries to his skin when the gun continued to operate due to a defective trigger mechanism), the Court held that the precise nature of harm causing the injury need not be foreseeable, only that injury may occur when the ladder fails to provide proper protection. The minority focused on the immediate cause of the injury, i.e. protruding pipes. The ladder was not defective and it allowed the plaintiff to perform his elevated work without incident. It did not slip, collapse or malfunction; therefore, the minority held that the statute was complied with. According to the minority, the pipes could have caused injury whether the plaintiff was stepping off a ladder or merely walking adjacent to the pipes. They argued, just as in Nieves, that it was not the ladder, or its placement, but an object unassociated with the elevated work that caused the injury.

There is no doubt that the Court of Appeals will review this decision. When it does, someone will likely point out that the major difference between this case and Nieves is that the lead light in Nieves was hidden from view and so, under those circumstances, the stepladder that was provided was considered adequate for the task. Here, the presence of the pipes was visible to all and, therefore, required the defendants to provide appropriate safety devices for the circumstances. In Melber, the plaintiff was held to be misusing the stilts. Here, there is no issue that plaintiff was using the ladder as intended; that he had placed it in the only position possible; that he had no other safety device to use; and that it could not be used safely for the work, which necessarily required a ladder to be rendered unsafe by the pipes.

Ferluckaj v. Goldman Sacks & Co. , 50 A.D.3d 359 (1 ^st Dept. 4/10/08)

Castillo v. 62-25 30 ^th Avenue Realty, LLC , 47 A.D.3d 865 (2 ^d Dept. 1/29/08)

During the trial of plaintiff's §240(1) claim, the deposition of an eyewitness was read into evidence. The deposition included testimony that the plaintiff fell from an elevated work site when the metal rack he was working on suddenly came loose and, after he hit the floor, fell and struck him. The plaintiff's deposition was also read into evidence, in which he stated he was standing under the scaffold when a piece of the scaffold fell and hit him in the head. The jury found violations of §240(1) but that there was no proximate cause. The Court reversed and directed a judgment of liability in plaintiff's favor holding that under either scenario "there was no rational basis for the jury to conclude that a violation of Labor Law §240(1) was not the proximate cause of the plaintiff's injuries."

NOTE: The Court cited its prior holding in Jiron v. China Buddhist Assn., 266 A.D.2d 347, and Smith v. Jesus People, 113 A.D.2d 980, in which it held that the requirements of §240 extend not only to the hazards of building materials falling but to the hazards of defective parts of safety devices falling from elevated heights.

Predmore v. EJ Construction Group , 51 A.D.3d 1405, 857 N.Y.S.2d 864 (4 ^th Dept. 5/2/08)

1. Recalcitrant Worker Doctrine/ Blake Defense

Mulcaire v. Buffalo Structural Steel , 45 A.D.3d 1426 (4 ^th Dept. 11/07)

In a departure from long-standing requirements that must be established before defendant can successfully raise the "sole proximate cause" defense, the Fourth Department reversed the Supreme Court's granting of summary judgment to the plaintiff. The plaintiff sustained injuries while he was installing floor decking in a building under construction. He slipped and fell through an uncovered opening. The Court stated that the plaintiff had met the initial burden to establish a violation of §240(1) and that the "absence of or defect in a safety device was the proximate cause of plaintiff's injuries." The Court then stated defendants had raised an issue of fact as to whether plaintiff was the sole proximate cause of his injuries. Specifically, defendants raised an issue of fact as to whether there were extra sheets of decking available to plaintiff for safety purposes and, if so, whether plaintiff, based on his training, prior practice and common sense, knew, or should have known, to cover the opening, and similar openings, that were created by the act of laying down the decking according to the project plan.

NOTE: Smith v. Hooker Chemical Company, which first articulated the recalcitrant worker doctrine, came out of the Fourth Department. That case, cited by the Court of Appeals with approval, required an affirmative offer of a safety device to the plaintiff and the plaintiff's affirmative refusal to use it. Subsequently, the recalcitrant worker doctrine was applied to factual circumstances where it could be inferred from the facts that plaintiff was provided with an appropriate safety device and, by his actions, he refused to use it. Mere instructions to be careful and safe do not fulfill the defendant's duty under the statute. The statute requires the defendant to provide and to erect an appropriate safety device. If the duty is not complied with, then the statute has been violated and any culpable conduct on plaintiff's part cannot serve as a defense. Here, the Court seems to suggest that if a jury were to find that there was extra decking on the job site for safety purposes, and the plaintiff had prior knowledge and training and common sense that he should have covered the openings, they could determine he was the sole cause of the accident. This is contrary to the intent of the statute and prior case law from the Court of Appeals, since it is permitting the defendant to escape responsibility under §240 where it can be shown that the plaintiff had the knowledge and materials to construct his own safety devices. The legislative intent behind §240 was to place this duty upon the defendant and it has repeatedly been described as an absolute duty which the defendant cannot avoid responsibility for by delegating the work to someone else, including the plaintiff.

Santo v. Scro , 43 A.D.3d 897 (2 ^nd Dept. 09/07)

Plaintiff was injured when he fell from a scaffold while installing light fixtures. The defendants moved for summary judgment based upon Scro's testimony that he denied the plaintiff's employer permission to use the scaffold. The plaintiff testified he did not use the extension ladder provided by his employer because it was too flimsy and there was no one available to secure the bottom of the ladder. The Court reversed the lower court's dismissal of plaintiff's §240(1) claim, stating the defendants failed to establish a prima facie case for dismissal. Here, the proof failed to establish that the extension ladder brought by plaintiff's employer was adequate, or that the scaffold he fell from was an adequate safety device, or that the plaintiff was a recalcitrant worker, which requires proof of "immediate, specific instructions to use an actually available safety device or to avoid using a particular unsafe device."

Kozlowski v. Grammercy House , 46 A.D.3d 756 (2 ^nd Dept. 12/18/07)

The plaintiff was injured when he fell from a ladder while removing wallpaper which, in turn, caused the ladder's steps to become very slippery. Without discussing the basis for its holding, the Court concluded that plaintiff's activities were covered under the Labor Law. The Court, however, stated that a fall from a ladder does not automatically establish a violation of §240(1) and the plaintiff had not produced sufficient facts to eliminate the issue of whether he was the sole cause of the accident. The Court's reasoning was that a question of fact existed as to whether plaintiff's conduct allowed the steps and feet of the ladder to become slippery and whether this was the sole cause of the accident.

Morgan v. Neighborhood Partnership Housing Development Fund ,

50 A.D.3d 866 (2 ^nd Dept. 04/15/08)

Plaintiff was granted summary judgment after demonstrating a prima facie case and the defendant failed to raise any triable issue of fact as to a recalcitrant worker defense. There was no discussion of the particular facts giving rise to the accident.

Chlebowski v. Esber , 18 Misc.3d 819 (Kings County 01/28/08)

The Court granted plaintiff summary judgment on his §240(1) claim for injuries sustained when the stepladder he was on, which was positioned on top of a scaffold platform, suddenly moved, causing him to fall. Defendants argued that while there were no other safety devices at the job site, plaintiff was the sole cause of his accident because he did not avail himself of equipment that was available 15 minutes away at his employer's warehouse. The Court refused to accept this argument, stating that the Court of Appeals has held that safety equipment must be available for plaintiff's use "at the job site." Robinson v. East Medical Center, 6 N.Y.3d 550.

Erdman v. Dell , 854 N.Y.S.2d 755 (2 ^nd Dept. 04/01/08)

In the context of a legal malpractice claim, the Court found there still existed an issue of fact as to whether the underlying §240(1) claim would have been successful. The issue involved whether the scaffold from which the plaintiff fell provided proper protection or whether it was the plaintiff's failure to lock the wheels that was the proximate cause of the accident.

IX. ADEQUACY OF THE SAFETY DEVICE

King v. Perrotte , 50 A.D.3d 1266 (3 ^rd Dept. 4/11/08)

Plaintiff, a roofer, was injured while offloading bundles of shingles from a forklift onto the roof. At trial, plaintiff claimed he was standing on a pallet of shingles on top of the forklift, which was elevated three feet above the level of the roof. The defendant, without warning, moved the forklift backwards several feet and tipped the forks downward, dumping plaintiff and its contents 15 feet to the ground below. Defendant's version was that, after raising the bucket to the level of the roof, the hydraulic lift began to slowly move downward, while plaintiff remained standing in the bucket until it reached the ground and the bucket tilted downward. Defendant claimed he was not in the forklift, and that plaintiff was laughing and made a statement to the effect that he dropped a bail of shingles he had been holding on his foot. At the close of the proof, the Court granted a directed verdict that §240(1) had been violated, i.e.; the defective forklift, but submitted proximate cause issues to the jury. The jury found no proximate cause. The Third Department stated there was sufficient evidence in the records upon which a jury could conclude plaintiff's fractured toe occurred not because of the malfunction of the lift, but by plaintiff simply dropping a bundle of shingles on his toe.

Weinberg v. Alpine Improvements , 48 A.D.3d 915 (3 ^rd Dept. 02/21/08)

Plaintiff, an electrician, fell from the third step of a ladder while working on a remodeling project at a supermarket. Plaintiff stated his "feet . . . gave way" and he fell to the floor. While on the floor, he noticed the bottom of his boot had a greasy substance on it, similar to cheese. The Court dismissed the §240(1) claim upon the grounds that there was no proof the ladder collapsed, fell over, malfunctioned, failed to support him or was defective in any respect, or that it was improperly placed or was inadequate for the task at hand. Whether the ladder was adequate or not is ordinarily a question of fact, however, plaintiff's own testimony established that his fall was unrelated to the adequacy or placement of the safety device. Plaintiff's §241(6) claim was dismissed, since each of the Industrial Code Rules cited were either inapplicable or lacked specificity. The Court did allow plaintiff to pursue a §200 Labor Law claim against the owner who had a duty to maintain its premises in a reasonably safe condition.

Carino v. Webster Place Associates, LP , 845 N.Y.S.2d 60 (1 ^st Dept. 11/07)

Plaintiff was injured when he fell from a ladder while removing an eight foot high fence at a construction site. Without any detailed discussion of the facts, the Court granted summary judgment to plaintiff stating, "regardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing."

X. SUPERSEDING CAUSE

Rivera v. Rite Lite Ltd. , 13 Misc.3d 1142 (Supreme Kings County 10/06/06)

The plaintiff alleged that he fell from a two-story scaffold which suddenly moved when a co-worker at ground level inadvertently attempted to move it. In resolving several issues on the various motions, the Court rejected the defendant's 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 co-worker does not constitute a superseding 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 at issue with the worker's compensation claim form that indicated he fell only 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.

Campbell v. City of New York , 31 A.D.3d 594, 819 N.Y.S.2d 294 (1 ^st Dept. 09/14/06)

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, for that matter, that he was going to climb its pole, was not a legal basis for dismissal of the common law negligence claim since its duty under Basso v. Miller, 40 N.Y.2d 233, was to maintain the pole for foreseeable users, whether they are authorized or unauthorized. The Court also determined that the truck rolling down the hill was not an unforeseeable superseding event, as a matter of law. The Court noted that plaintiff's work involving the splicing of 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. Foreseeability, as to the particular chain of events that ultimately leads to the need for 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 granting of summary judgment to plaintiff, reasoning that plaintiff's expert's opinion - that the pole failed to comply with industry standards (which was based only upon an examination of photographs) - 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).

XI. WHEN DOES §241(6) APPLY?

Misicki v. Caradonna , 857 N.Y.S.2d 672 (2 ^d Dept. 05/06/08)

The plaintiff was injured while using a power-operated tool known as a grinder to cut through concrete. The Court dismissed plaintiff's §241(6) claim premised upon 12 NYCRR 23-9.2(a) which requires power-operated equipment to be inspected and properly maintained. The Court held this was a non-specific and general safety standard and was insufficient to support the §241(6) claim.

NOTE: The Fourth Department disagrees with the Second Department in this regard, holding that NYCRR 23-9.2(a) is specific and sufficient to support a §241(6) claim.

Long v. Tishman/Harris , 50 A.D.3d 356 (1 ^st Dept. 04/08/08)

Plaintiff injured his shoulder as he was attempting to steady a 66,000 pound girder being hoisted 60 feet in the air by a mobile crane. Plaintiff had given the crane operator a radio signal to bring the girder closer to him. The crane operator moved the entire crane forward, causing the I-beam to swing and strike the building next door. This caused its momentum to shift to the end the plaintiff was holding. The Court dismissed the §241(6) claim, stating that 12 NYCRR 23-8.1(f)(2), which requires that while hoisting loads it shall not contact any obstruction. The Court concluded this meant the interference with raising the girder, but did not cover the situation where the girder was caused to swing because the crane itself moved, nor did it find that 12 NYCRR 23-8.2(g)(1)(ii) applied, which requires that while assessing mobile crane stability, numerous factors must be accounted for, none of which apply to this situation.

Brady v. City of New York , 52 A.D.3d 331 (1 ^st Dept. 06/12/08)

Plaintiff's ear was burned while he was engaged in flame cutting operations. The Court held that 12 NYCRR 23-1.25(d), which requires that "approved eye protection suitable for the work involved and appropriate protective apparel" shall be provided, was applicable to the facts. Plaintiff's argument that he should have been given a face shield in addition to burning goggles was accepted by the Court. "The context of the regulation makes it clear that what is appropriate necessarily depends on the task involved. The Court refused to follow the Fourth Department case of Winkelman v. Alcan Aluminum Corp., 256 A.D.2d 1126.The Court reinstated plaintiff's §200 claim, stating that the owner's resident engineer's testimony that he had inspected the site several times a day and that he had the authority to stop the work if he observed an unsafe condition, such as burning steel without protection, created an issue of fact as to control.

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

Hunter v. R.J.L. Development, LLC , 44 A.D.3d 822 (2 ^nd Dept. 10/07)

Plaintiff sustained his injuries when he fell from an unsecured ladder that slipped on dirt on which it had been placed. The Court reversed the lower court's grant of summary judgment to the defendants, stating that they failed to demonstrate a prima facie entitlement to judgment. The Court also reinstated the plaintiff's §241(6) claim premised upon 12 NYCRR 23-1.21(b)(4)(iv), which requires that when work is being performed between six and ten feet above the footing, a leaning ladder shall be held in place by a person stationed at the foot of such ladder

2. The Rule Must Apply to the Facts, Which is a Matter of Law,

Not One of Fact

Morris v. Pavarini Construction , 9 N.Y.3d 47 (07/02/07)

Deciding whether a provision of the Industrial Code is applicable to a given set of facts is a question of law, but, on occasion, it requires resolution of factual issues before the Court can rule. Plaintiff injured his hand when a section of the concrete form being installed fell. Defendant made a motion for summary judgment to dismiss all claims, resulting in the Court's decision to dismiss all but plaintiff's §241(6) claim. Plaintiff relied upon 12 NYCRR 23- 2.2(a), which states, in relevant part: "Forms . . . shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape." Judge Smith wrote that the words "structurally safe" and "properly" are not specific enough to support a §241(6) claim. However, "braced or tied together so as to maintain position and shape" is specific enough to serve as a predicate for §241(6) liability. The next issue involved whether the provision was applicable to the facts of this case. While the defendant argued that the regulation is inapplicable to forms that are not completely erected, the plaintiff argues that the forms could have been tied together with wood or straps or both to prevent them from falling. The Court concluded that there was an insufficient description of how the forms are held together, or any detail as to plaintiff's engineer's conclusions. "Here, a more complete record is necessary, both as to the nature of the object that caused the injury, and the opinions of the expert and the construction of concrete walls, as to whether the words of the regulation can sensibly be applied to anything but completed forms."

Vital v. City of New York , 43 A.D.3d 309 (1 ^st Dept. 08/07)

Plaintiff, a roofer, was injured when he slipped and fell on a sandwich wrapper and/or wet tar while on the roof of defendant's premises. The Court dismissed the Labor Law §241(6) claim premised upon 23-1.7(e)(2). "The sandwich wrapper on which the plaintiff allegedly slipped does not qualify as debris under the provisions of the code ( cf., Canning v. Barneys, N.Y. 289 A.D.2d 32, 35, 734 N.Y.S.2d 116 [2001]). There is no evidence of record that the sandwich wrapper was anything more than a transient piece of paper; it did not amount to an accumulation of dirt and debris sufficient to constitute a violation of the code. The tar was a product of plaintiff's work and therefore was not debris."

Giordano v. Forest City Ratner Companies , 43 A.D.3d 1106 (2 ^ndDept. 09/07)

Plaintiff, a carpenter, sustained an injury when a gust of wind blew a 4' x 8' sheet of plywood into the back of his head. The plywood was being used as a base for concrete forms that would ultimately be used to create the floors. The Court dismissed the §241(6) claim premised on 23-2.4(a), (b) and (c), finding as a matter of law that they had no applicability to poured concrete construction. As to the claim premised on 23-2.2(a), which requires that "forms, shores and reshores shall be structurally safe and shall be properly braced or tied together so as to maintain position and shape," the Court stated the defendants failed to establish a prima facie case for the same reason as stated in Morris v. Pavarini, 9 N.Y.3d 47. In both cases, there was no expert proof that addressed whether or not these forms could be feasibly secured prior to the completion of the task setting them up.

Temes v. Columbus Centre, LLC , 48 A.D.3d 281 (1 ^st Dept. 02/14/08)

Plaintiff's §241(6) claim was reinstated upon a finding that he slipped on ice which was hidden from view by a covering of construction dirt, causing him to wrench his hip. The Court found that 12 NYCRR 23-1.7(d) did apply to the facts since the area where plaintiff fell was a "floor" within the meaning of the provision and his slipping incident occurred due to an accumulation of construction debris.

Waitkus v. Metropolitan Housing Partners , 50 A.D.3d 260, 854 N.Y.S.2d 388 (1 ^st Dept. 04/01/08)

The Court dismissed the plaintiff's Labor Law §200 claim since there was no proof the defendant exercised supervisory control over the work. Plaintiff's §241(6) claims under 12 NYCRR 23-2.1(a)(1) and 23-1.7(e)(2) were found to not be applicable to the facts of this case.

Hageman v. Home Depot, 45 A.D.3d 730 (1 ^st Dept. 11/07)

Plaintiff was injured when he fell on debris, including pieces of glass. The Court allowed plaintiff's §241(6) claim based upon 12 NYCRR 23-1.7(d), since the defendants failed to show that the debris was not a foreign substance posing a hazard. It also allowed plaintiff to amend the bill of particulars alleging the violation of 23-3.3, which requires continued inspection of hand demolition work and requires that workers are to be protected by shoring, bracing or other effective means. An alleged violation of 12 NYCRR 23-1.7(e)(1) was dismissed since plaintiff was not injured in a passageway.

Marinaccio v. Arlington Central School District, 40 A.D.3d 714 (2 ^nd Dept. 05/08/07)

The plaintiff, who was attempting to remove an insulation blanket covering footings in a trench, was injured after tripping over a masonry block. The Court dismissed the §241(6) claim, stating that 12 NYCRR 23-1 .7(e)(2), which requires the floors of all working areas to be kept clear of debris, scattered tools, and materials "insofar as may be consistent with the work being performed," was inapplicable because the plaintiff's work entailed removing the blanket and the debris upon which he tripped.

Burkoski v. Structural Tone Inc. , 40 A.D.3d 378 (2 ^nd Dept. 05/17/07)

Plaintiff, a 56 year old, 325 pound cable installer, sustained bilateral knee injuries when he was assisting a co-worker in carrying cable through an unfinished room. He claimed his leg got caught in a stack of heavy floor tiles which had not yet been installed, causing him to do a "split." The Court dismissed plaintiff's §241(6) claim, rejecting each of the Industrial Code Rules cited by plaintiff as being not applicable to the circumstances of this accident.

Modeste v. Mega Contracting Inc. , 40 A.D.3d 255,835 N.Y.S.2d 156 (1 ^st Dept. 05/03/07)

Plaintiff's decedent was thrown from the roof of a skid loader with a forklift attachment when the machine lurched. When the accident occurred, the skid loader was being used to transport material from one location to another, lifting the material no more than ten inches off the ground. The Court felt this did not invoke the elevation-related differential and gravitational hazards necessary for §240(1) to apply, and granted the defendant's motion for summary judgment as to this claim. However, the Court denied the motion on the §241(6) claim, premised upon 23-9.8(a)(b).

3. Scope of Work Covered by §241(6)

Gherardi v. City of New York , 49 A.D.3d 280 (1 ^st Dept. 03/04/08)

In this brief decision, it appears that the plaintiff sustained an injury while on a ramp that was not built for construction purposes, but was the entrance ramp used by workers for ingress in bringing materials to the actual worksite. The Court denied defendant's motion for summary judgment, finding that while plaintiff was not injured while constructing, demolishing or excavating as required under §241(6), his work, nonetheless, met the definition of construction defined in 12 NYCRR 23-1.4, which itemizes the activities enumerated in §240(1), i.e., the work he was performing amounted to alteration-type work. Although the accident occurred on an entrance ramp and not where plaintiff's work was actually being conducted, it was of no moment, since the statute extends to these areas as well.

Solis v. 32 Sixth Avenue Co. LLC, 38 A.D.3d 389 (1 ^st Dept. 03/22/07)

Plaintiff, a mason, was injured when he tripped over debris generated by the work he was performing on a scaffold. He did not fall off the scaffold, hence the claims were brought under §241(6) only. The Court granted the defendant summary judgment since the cited Industrial Code Rule, 23-3.3(b)(5)(e), applied only when demolition work consisted of the dismantling or raising of a building or structure. Plaintiff was simply repairing flashing/pointing type-work and the regulation therefore did not apply. Further, 23-1.7(e)(2) also was not applicable since the debris which caused his trip/fall was generated by the very work he was performing.

4. Type of Activity Covered by Industrial Code

Cohen v. Columbia University, 44 A.D.3d 533 (1 ^st Dept. 10/07)

Bedneau v. New York Hospital Medical Center of Queens , 43 A.D.3d 845 (2 ^ndDept. 09/07)

Plaintiff was injured when he slipped and fell on water that accumulated from a leaking boiler that he was repairing. Of interest was the Court's dismissal of the plaintiff's §241(6) case, stating that "the protections of Labor Law §241(6) do not apply to the simple repair of an appliance unrelated to construction, demolition or excavation," citing numerous cases, two of which were Court of Appeals Decisions: Esposito v. NYC, 1 N.Y.3d 526, and Nagel v. D & R Realty Corp. 99 N.Y.2d 98.

5. Notice

Wrighten v. ZHN Contracting Corp. , 32 A.D.3d 1019, 822 N.Y.S.2d 115 (2 ^nd Dept. 09/26/06)

Although the venue of this lawsuit was in the Second Department, the venue of the accident was in the First Department's courthouse. Plaintiff fell on a wet ramp as he was working on a project to renovate portions of the Appellate Division courthouse. The Court reinstated plaintiff's §241(6) claim against several of the defendants, stating "since an owner or general contractor's vicarious liability under §241(6) is not dependent upon its personal capacity to prevent or cure a dangerous condition, the absence of actual or constructive notice sufficient to prevent or cure is irrelevant to the imposition of Labor Law §241(6) liability," citing Rizzuto v. Wenger, 91 N.Y.2d 343. The Court went on to overrule Bradley v. Morgan Stanley, 21 A.D.3d 866, and Bommarito v. Park Ave., 307 A.D.2d 944, to the extent it may be read to require notice.

6. Proof of Negligence and Proximate Cause Required

Harris v. Arnell , 47 A.D.3d 768 (2 ^nd Dept. 01/22/08)

The Court granted plaintiff summary judgment on his §241(6) claim, stating he demonstrated a prima facie entitlement to judgment. Without discussing any facts, the Court held the defendant did not raise a triable issue of fact concerning plaintiff's employment scope or as to any comparative negligence.

NOTE: While summary judgment is rarely granted to the plaintiff on a §241(6) claim, primarily due to the issue of comparative negligence which is generally resolved as a question of fact, the defendant still has the obligation to come forward with facts, in admissible form, to create a legitimate triable issue in this regard.

Pichardo v. Urban Renaissance, 857 N.Y.S.2d 144 (4 ^th Dept. 5/8/2008)

Caceres v. Ciampa Organization , 47 A.D.3d 432 (1 ^st Dept. 01/08/08)

The Court denied defendant summary judgment on plaintiff's §200 and §241(6) Labor Law claims, stating there were issues of fact as to whether the loose pieces of planking over which the plaintiff tripped were put down by defendants and whether it was a substantial factor in causing the fall.

Hernandez v. Columbus Center, LLC, 50 A.D.3d 597 (1 ^st Dept. 04/29/08)

The jury returned a verdict in favor of the plaintiff on his Labor Law §200 and §241(6) claims, awarding $15,300 for past pain and suffering and $127,500 for future pain and suffering. The Court affirmed the verdict of liability under §200 and found that the award for past pain and suffering was insufficient in light of three years of lost wages, "An award of $100,000.00 for past pain and suffering over three years is reasonable." Plaintiff had sustained a partial meniscal tear which required out-patient surgery, crutches, the use of a cane and physical therapy. The Court threw out the judgment on the §241(6) claim after determining three out of the four Industrial Code Rules submitted to the jury were inapplicable as a matter of law, because all four were submitted as one question to the jury; hence, there was no way to conclude which rule they determined was violated and served as a proximate cause of plaintiff's injury.

Zuluaga v. P.P.C. Const., LLC , 45 A.D.3d 479 (1 ^st Dept. 11/07)

The Court also granted partial summary judgment on plaintiff's §241(6) claim premised upon 23-1.7(a) and 23-3.3(g), which requires that workers be provided with overhead protection in areas where there is a risk of falling debris. The Court also affirmed the lower court's grant of permission to plaintiff to amend his bill of particulars to allege violations of the Industrial Code and to consider the violations listed on the motion for summary judgment, despite plaintiff's failure to identify them in the complaint and/or bill of particulars.

McGovern v. Gleason Builders , 41 A.D.3d 1295 (4 ^th Dept. 06/08/07)

The plaintiff was injured when he fell after attempting to step on a bucket that was used as a step into a house under construction. The Court held there was a triable issue of fact upon plaintiff's §241(6) claim as to whether defendant violated 12 NYCRR 23-1.7(f), which requires stairways to be provided to the plaintiff and/or whether there was an alternate route into the house. The plaintiff's motion was also denied on the grounds that his comparative negligence was a triable issue of fact.

7. Class of People Covered by §241(6)

Passante v. Peck & Sander Properties , 33 A.D.3d 980, 823 N.Y.S.2d 220 (2 ^nd Dept. 10/31/06)

Without any mention of the specific facts underlining the Court's conclusion, plaintiff's Labor Law claims were dismissed because the plaintiff did not "demonstrate that he (or she) was both permitted, or suffered, to work on a building or structure and that he was hired by someone, be it owner, contractor or their agent." Whalen v. Warwick, 47 N.Y.2d 970.

8. Who is Responsible Under §241(6)?

Markey v. C.F.M.M. Owners Corp. , 858 N.Y.S.2d 294 (2 ^nd Dept. 05/13/08)

Plaintiff's §200 Labor Law claim was dismissed as against two defendants on the basis that they did not have the authority to supervise or control the manner of the work. The §241(6) Labor Law claim against the tenant was valid, since the tenant contracted to have the work performed and, by doing so, fulfilled the role of owner under the Labor Law. The title holders to the property were also proper defendants, whether they hired the contractors or not.

Soltes v. Brentwood Union Free School , 47 A.D.3d 804 (2 ^nd Dept. 01/22/08)

Finding several issues of fact, the Court denied both parties' motions for summary judgment. On the §240(1) claim, the factual issues as to adequate safety devices being provided and defendant's position as an agent of the property owner with the authority to supervise and control the work, as alleged by plaintiff, needed to be resolved. Plaintiffs also raised a triable issue of fact on §241(6) concerning whether the scaffold complied with 12 NYCRR 23-5.3(f).

Kwang Ho Kim v. D & W Shin Realty Corp. , 47 A.D.3d 616 (2 ^nd Dept. 01/08/08)

Plaintiff was injured when he fell from an unsecured 12-foot ladder that slipped out from under him. Just prior to the accident, defendant, ACP, told the plaintiff to stop working because he was alone and it was raining. The Court reversed the lower court's grant of summary judgment in favor of the defendant ACP. Although ACP was a tenant that hired plaintiff's employer, and not the owner of the building, it met the requirements of "owners" under the Labor Law, since the term is not confined to titleholders, but also includes persons who have an interest in the property and who fulfill the role of the owner, such as through contracting to have the work performed. The Court also found defendant's moving papers to be deficient in creating a prima facie establishment that the ladder provided "proper protection," or that plaintiff's actions of not holding onto the ladder, or in his failure to secure the ladder and/or heed the instructions to stop working, were the sole proximate cause. The Court also determined that two of the several Industrial Code Rules cited in connection with the §241(6) claim were applicable and sufficient to support such a cause of action.

Rivera v. Ambassador Fuel and Oil Burner Corp. , 845 N.Y.S.2d 25 (1 ^st Dept. 11/07)

The plaintiff's §241(6) claim was reinstated upon the Court's conclusion that 12 NYCRR 23-1.7(g) and 12-1.9 are sufficiently specific to support a §241(6) claim. The plaintiff's injury was alleged to have been caused by cleaning out an unventilated fuel tank. The Court found the cleaning work to be part of a larger project involving the installation of new boilers for which the Industrial Code Rules provide concrete and specific commands. Even though the provisions speak of the duty that the employer owes to the employee, providing proper ventilation equipment, the defendant owner is not relieved of its non-delegable responsibility under §241(6), citing Rice v. City of Cortland, 262 A.D.2d 770.

Titus v. Kirst Const., Inc. , 43 A.D.3d 1324 (4 ^thDept. 09/07)

Plaintiff fell from an eight foot ladder which he had placed on top of a Bakers scaffold. The Court granted summary judgment to David Christa Construction, Inc., finding that Christa, according to its contract with the owner, did not have authority to enforce workers' safety as per its contract. Therefore, it was not the agent of the owner for purposes of the Labor Law because it had no control over, or responsibility for, the safety of the workers.

Miller v. Gedola , 44 A.D.3d 1017 (2 ^ndDept. 10/07)

Without discussing the facts of the case, the Court affirmed summary judgment to plaintiff, holding that the defendant did have the authority to supervise and control the work which gave rise to the injuries plaintiff sustained and, thus, defendant was a statutory agent of the owner or general contractor.

Butt v. Bovis Lend Lease LMB, Inc. , 47 A.D.3d 338 (1 ^st Dept. 12/07)

The plaintiff fell from a ladder while plastering a beam in the ceiling of a public school. The plaintiff brought his Labor Law claims against the general contractor who, in turn, moved to dismiss the claims on the basis that "plaintiff's work at the time of the accident was outside the scope of the general contractor's contract." Although this is a valid defense, the motion was denied on the basis that the defendant failed to prove, as a matter of law, that the work was outside its contract.

Piazza v. Shaw Contract Flooring Services , 39 A.D.3d 1218 (4 ^th Dept. 04/20/07)

Plaintiff was an employee of Buffalo Municipal Housing Authority and was responsible for cleaning and removing trash from a vacant apartment. The Municipal Housing Authority contracted with the defendant to replace portions of the kitchen floor in one of the apartments recently vacated. Plaintiff was sent there by his employer to throw out trash and perform cleaning services. The Court dismissed plaintiff's §241(6) claim after concluding that the plaintiff was not performing construction, excavation, or demolition work. Unlike §240(1), stand-alone cleaning is not an activity to which §241(6) will apply. Despite the fact that the defendant was performing construction work for purposes of §241(6), the plaintiff's task had no involvement with replacing the floor.

Alfonseca v. Ban Construction Corp. , 39 A.D.3d 266 (1 ^st Dept. 04/05/07)

The Court dismissed the Labor Law claims against this defendant since plaintiff failed to show that they had any authority to control the activity bringing about the intrigue.

9. Claim Premised Upon §241(8)

Nothing new or novel for 2008.

XII. DEFENSES UNDER §240 AND §241

1. One- and Two-Family Homeowners Statutory Exemptions

Castro v. Mamaes , 51 A.D.3d 522, 858 N.Y.S.2d 137 (1 ^st Dept. 05/15/08)

The plaintiff, who was injured when the scaffold he was on collapsed, sued one of two brothers who was a title owner to this single family home. The two brothers had lived in the home with their mother, father and grandmother since 1981. After the death of their father and grandmother, they continued to reside in the house until 2002 when the mother entered a nursing home and Demetrios got married and moved out. At that time, the title to the house was transferred to both sons. Petros was the only family member still residing in the house and he was the party who hired the plaintiff. The Court dismissed the claim against the mother, who held a life tenancy, and Demetrios, upon the one- and two-family dwelling exemption, rejecting the argument that the residence must be owner occupied. The key circumstance, according to the Court, is not the owner's residential status but "the site and purpose of the work." Since the only purpose for which the house was used was to serve as the primary residence of the family members, and the only purpose of the work was to benefit the residents, the exemption applies to all.

Davis v. Maloney , 49 A.D.3d 385 (1 ^st Dept. 03/13/08)

Plaintiff sustained an injury while working on a barn owned by defendants. Defendants also owned an adjoining parcel of land where their one family dwelling was located. The Court held there was an issue of fact as to "whether the barn should be considered part of the dwelling for purposes of the homeowner's exemption." Defendant argued that the property was accessible only through a neighbor's road. This, the Court said, raised a legitimate issue of fact. Also at issue was whether the barn was to be used predominantly in farm production or commercial horse-boarding operation, which would deny the exemption. Defendant showed plaintiff a signed tax certificate certifying that she (defendant) was exempt from sales tax on material and labor because the barn was used predominantly in farm production or in a commercial horse boarding operation.

NOTE: Horse farms, hay farms and even vacant land are entitled to significant property tax and sales tax exemptions, provided the owner is actively using the property for such purposes, or can establish the existence of a lease for a period of five years with another individual who actively is engaged in these operations. The land does not have to be actively used for growing crops, hay, etc., but it must be subject to a lease which allows a farmer the right to do so.

Umanzor v. Charles Hofer Painting and Wallpapering , 48 A.D.3d 662 (2 ^nd Dept. 02/13/08)

The Court granted co-defendants Hofer and Lopez summary judgment under the one- and two-family exemption. Although it was shown that a portion of the residence was used for an office, this "did not detract from the building's primary use as a residence, and any purported commercial activity was incidental thereto."

Ryba v. Almedia , 44A.D.3d 740, 843 N.Y.S.2d 388 (2 ^ndDept. 10/07)

The Court denied defendant's motion seeking dismissal under the one- and two-family exemption. According to the Court, the defendants, who owned several construction and real estate development businesses, failed to establish as a matter of law that they did not direct or control the plaintiff's work.

Arama v. Fruchter , 39 A.D.3d 678 (2 ^nd Dept. 04/17/07)

Plaintiff fell while renovating a single family home. Because the plaintiff did not establish that defendant directed and controlled the manner or method of his work, the exemption applies. Instructions as to aesthetic appearance of the home and inspecting the progress of the work do not amount to the requisite direction or control necessary to defeat the exemption.

Lista v. Newton , 41 A.D.3d 1280 (4 ^th Dept. 06/08/07)

The plaintiff was injured when he fell from a ladder while installing stalls in a horse barn. Concerning the Labor Law claims, the issue involved whether the one- and two-family exemption applied to a barn that was used partially to store personal property, as well as horses belonging to the owner's daughter. The Court held the exception did apply and the fact that the work was performed on the barn and not on a residential home does not alter the analysis. The barn, located on Newton's property, was being used in part for personal storage akin to a residential garage and should be considered an extension of the dwelling within the scope of the homeowner's exemption, citing George v. Hunt, 289 A.D.2d 935.

Burnett v. Waterford Custom Homes, 41A.D.3d 1216 (4 ^th Dept. 06/08/07)

Plaintiff fell from a roof while performing carpentry work during the erection of a single family home. Plaintiff's employer was hired by the defendant owner who, along with his wife, intended to reside in the house once it was built. The defendant was also the sole shareholder of the defendant, Waterford Custom Homes, which buys and develops real estate for single family homes. The Court dismissed the claim against the individual owner on the basis of the one- and two-family exemption. Although the owner was experienced in the building trade, there was insufficient evidence on the record to establish his control over the method and manner of the plaintiff's work so as to negate the exemption. On the other hand, the Court did allow the case to continue against the corporation, finding a question of fact as to whether the corporation was acting as the general contractor for the entire project.

2. Comparative Negligence

Nothing new or novel for 2008.

3. Engineers and Architects

Gonzalez v. Pon Lin Realty , 34 A.D.3d 638, 826 N.Y.S.2d 94 (2 ^nd Dept. 11/21/06)

The plaintiff was injured when he crashed through a flight of stairs while carrying a bag of cement. He brought various Labor Law claims against various parties, most of which were dismissed by the Court. However, the Court ruled that 12 NYCRR 23-1.7(f), which requires stairs, ramps or runways to be provided for access to working areas, was sufficient to support a §241(6) claim. The §200 claim was dismissed against the prime contractor upon a showing that it neither supervised nor controlled plaintiff's activities. The Court denied plaintiff's request to amend his bill of particulars to include additional Industrial Code violations on the basis that the Industrial Code Rules sought to be included were inapplicable. Finally, all claims were dismissed against the architect since there was no showing that he directed or controlled the work for purposes of a §200 claim and pursuant to the specific exemption provided by the statute to architects under §240 and §241.

4. Workers' Compensation

Melson v. Sebastiano , 32 A.D.3d 1259, 822 N.Y.S.2d 203 (4 ^th Dept. 09/29/06)

The Court granted plaintiff summary judgment on his §240(1) claim against Maria Sebastiano, but dismissed the claim against her husband, Michael, even though both were owners of the property and both were co-employees of the plaintiff at Sebastiano Construction, Inc. Plaintiff was employed by Michael F. Sebastiano Construction, Inc., of which Michael was the sole owner and officer. His wife Maria was the office manager for the corporation. Plaintiff was injured when he fell while in the process of replacing the roof on the building. Section 240(1) was determined to have been violated as a matter of law since there were no safety devices in place to prevent the plaintiff from falling. The only issue was whether an action could be maintained against one or both co-employees. The Court dismissed the claim against Michael, since he was the sole owner and officer of the corporation and, as such, his responsibility relative to safety precautions at the property was indistinguishable from that of the construction company's responsibilities." Michael remains a co-employee in his relations with plaintiff in all matters arising from and connected with their employment (see Heritage v. Van Patten, 59 N.Y.2d 1017). However, Maria was not an owner or officer of the corporation and "co-employee immunity is only justified when the tortfeasor's conduct is within the course of employment." ( Cusano v. Staff, 191 A.D.2d 918) As office manager, Maria had no responsibility for safety precautions at the worksite.

5. Grave Injury

Nothing new or novel for 2008.

6. Special Employee

Graziano v. 110 Sand Co. , 50 A.D.3d 635 (2 ^nd Dept. 04/01/08)

While this case is not a §240 or §241 case, it is relevant to the defense of "special employee." The plaintiff, a truck driver, was assigned by his employer to work for the defendant, 110 Sand Co., under a lease agreement that provided trucks and drivers. For a year and a half, plaintiff was assigned to the defendant, 110 Sand Co., and reported to work each day at that site and received his work assignments from defendant's foreman. After sustaining an injury which rendered him unable to work, he applied and received workers' compensation benefits from his employer. Thereafter, he sued 110 Sand Co. and, upon a motion, the lower court dismissed the claim. On appeal, the decision was affirmed, since "a person may be deemed to have more than one employer and may, while employed by one entity, also be a special employee of another. Although many factors are weighed in deciding whether a special employment relationship exists, courts have focused on the 'significant and weighty' factor of 'who controls and directs the manner, details and ultimate result of the employees work.'" ( Thompson v. Grumman, 78 N.Y.2d 553). Section 11 prohibits a worker from receiving workers' compensation benefits and subsequently attempting to sue the employer. This provision also applies to bar a suit against a special employer.

XIII. CONFLICTS OF LAW ISSUES INVOLVING A LABOR LAW

Nothing new or novel for 2008.

XIV. LIABILITY OVER: INDEMNIFICATION/CONTRIBUTION

Tighe v. Hennegan Construction Co. , 48 A.D.3d 201 (1 ^st Dept. 02/05/08)

Plaintiff, an electrician, was injured while stringing temporary lights on a demolition project. Defendant Liberty, the demolition subcontractor, was held to be the party that supervised the work out of which the plaintiff's claims arose and, therefore, could be held liable under common law negligence and Labor Law Section 200. Moreover, plaintiff's §241(6) claim, predicated on 23-1.7(e)(2), was held to be viable since the debris upon which plaintiff fell, consisting of an accumulation of sheet rock debris, was not an integral part of the work plaintiff was performing. Indemnification should have been granted to the owner and Hennegan against Liberty, notwithstanding that the indemnification requirement was embodied in an agreement executed after the accident in question, since competent evidence existed that was sufficient to establish the agreement was actually entered into before the accident date and the parties intended it to apply as of the date it was entered into. One judge dissented on the basis of his conclusion that the sheet rock debris was an inherent part of the work being performed at the time of the accident by the plaintiff. Thus, the common law negligence claim and the §200 claim against Liberty should be dismissed, as well as the §241(6) claim against Hennegan.

Keating v. Nanuet Board of Education, 40 A.D.3d 706 (2 ^nd Dept. 05/08/07)

The plaintiff was injured when he fell through an unprotected skylight in the roof of Nanuet High School where he was working for third-party defendant, Environmental Climate Control. Siemens Building Technologies, Inc., was the general contractor. Siemens moved to have plaintiff's §241(6) and §200 claims, and all third-party claims, dismissed, since it claimed it had no supervisory capacity over plaintiff's work. The lower court granted summary judgment to Siemens, dismissing plaintiff's §200 and §241(6) claims. The plaintiff did not appeal from the lower court's order. However, the dismissal of the plaintiff's claims, under these circumstances, does not amount to a conclusion that, as a matter of law, Siemens was not itself negligent and, therefore, did not prevent the third-party defendant from alleging that the defendant was negligent and that the negligence was a proximate cause of plaintiff's injuries, thereby invoking § 5-322.1 in order to void the contractual indemnification between the parties. The third-party defendant, however, established that the common law indemnification and/or contribution claims brought by the defendant should be dismissed because there was no showing that the plaintiff sustained a grave injury under §11 of the Workers' Compensation Law. The contractual indemnification agreement was held to be viable since Siemens failed to establish that it lacked control over the work site which gave rise to plaintiff's injuries.

XV. PRE-EMPTION OF FEDERAL ADMIRALTY LAW

Feldman v. CSX Transp., Inc. , 31 A.D.3d 698, 821 N.Y.S.2d 85 (2 ^nd Dept. 07/25/06)

Plaintiff, a production supervisor employed by a plastic manufacturer, was injured while inspecting rail cars before they were loaded to ensure the cars contained no contaminates. He fell from the running boards on the top of the car and brought claims sounding in common law negligence, products liability and Labor Law (presumably §200, since plaintiff's work did not involve any of the covered activities under §240 and §241). The Court dismissed the product liability claim, finding that the Federal Safety Appliance Act, 49 U.S.C. §20301, preempted state law with respect to the design sufficiency of the railcar. The common law negligence claim and Labor Law claims, however, were not preempted "to the extent that the plaintiff's negligence claim seeks to enforce the S.A.A. safety provision, rather than regulate the safety appliance field." The Court dismissed these claims as a matter of law since the design of the hopper complied with S.A.A. regulations.

XVI. §241-a LIABILITY

Nothing new or novel for 2008.

XVII. §200

Tighe v. Hennegan Construction Co. , 48 A.D.3d 201 (1 ^st Dept. 02/05/08)

Geonie v. CD&PNY Ltd. , 50 A.D.3d 444 (1 ^st Dept. 04/15/08)

Plaintiff was apparently injured when he stepped into an opening left by the removal of a tile on a raised computer floor. This was not an elevation-related hazard, so the §240(1) claim was dismissed. Because it was not a hole which was intended to be covered under 12 NYCRR 23-1.7(b)(1), plaintiff's §241(6) claim was dismissed. The §200 claim was dismissed, despite evidence that the defendant's project superintendent coordinated the work of the trades, conducted weekly safety meetings with subcontractors, conducted regular walk-throughs, and had the authority to stop the work if he observed an unsafe condition. It was held to be insufficient to raise a triable issue as to whether the defendant exercised a requisite degree of supervision and control over the work.

Romang v. Welsbach Electrical Corp. , 47 A.D.3d 789 (2 ^nd Dept. 01/22/08)

Without any discussion as to how the accident occurred, the Court affirmed dismissal of plaintiff's common law negligence claims and his §200, §240, §241(6) claims. Of interest is the Court's analysis of Labor Law §200, stating that the statute not only codifies the common law duty of an owner or employer to provide employees with a safe place to work, but also that "this provision applies to owners, contractors and their agents."

NOTE: When reading the statute, there is no specific statement that the statute applies to "owners, contractors and their agents." However, this holding is not a novel one. See, Rizzuto v. Wenger, 91 N.Y.2d 343; Ross v. Curtis Palmer, 81 N.Y.2d 494; Comes v. NYS Electric & Gas, 82 N.Y.2d 876.

Disalvio v. YMCA , 858 N.Y.S.3d 310 (2 ^nd Dept. 05/13/08)

Plaintiff's Labor Law §200 claim was not dismissed upon a finding that there was a question of fact as to whether defendants created a dangerous condition by arranging for the removal of part of a wall in order to allow plaintiff and his employer access to piping that needed to be repaired.

Gallello v. MARJ Distributors Inc. , 50 A.D.3d 734 (2 ^nd Dept. 04/08/08)

The plaintiff's §240(1) claim was dismissed upon a determination that the work he was performing, which involved detaching a transformer from the wires and affixing it to a ceiling as part of repairing a neon sign, constituted maintenance work and, therefore, was not covered by the statute. Likewise, the §241(6) claim was dismissed since the work did not amount to construction, demolition or excavation. The §200 claim was dismissed since there was no showing that the defendant had notice of the dangerous condition. "Where . . . a plaintiff's injuries stem not from the manner in which the work was being performed, but rather from a dangerous condition on the premises, 'an owner or manager of real property' may be liable . . . under Labor Law §200 if it has control over the worksite and actual or constructive notice of the dangerous condition," neither of which were present here.

Norman v. Welliver McGuire , 48 A.D.3d 945 (3 ^rd Dept. 02/21/08)

This decision, involving plaintiff's Labor Law §200 and common law negligence claims, repeated the long-standing black letter law that a contractor has no liability under work place safety statutes, or the common law, in the absence of evidence that it exercised some supervisory control over the performance of the work.

Dinallo v. DAL Elec. , 43 A.D.3d 981 (2 ^ndDept. 09/07)

The Court affirmed summary judgment to defendant dismissing plaintiff's §200 cause of action, finding defendants had established that the jack assembly which injured the plaintiff was an open and obvious condition which was inherently dangerous.

Hansen v. Methodist Episcopal Church , 51 A.D.3d 725, 858 N.Y.S.2d 303 (2 ^nd Dept. 05/13/08)

The plaintiff was hired to repair portions of the church roof and replace the gutters. While removing a gutter, a portion of the soffit fell, injuring him. The only issue on appeal was whether the Court erred in dismissing the common law negligence claim. "Here, the defendants established their entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that the plaintiff's alleged injuries were caused by the rotted soffit that he was hired to remove and replace." Dismissal was warranted because the duty to provide a safe place to work does not extend to the hazards that are part of, or inherent in, the very work the employee is to perform.

Brady v. City of New York , 52 A.D.3d 331 (1 ^st Dept. 06/12/08)

XVIII. NOTICE OF CLAIM

Nothing new or novel for 2008.

XIX. §202 WINDOW WASHER STATUTE

Ferluckaj v. Goldman Sacks & Co. , 50 A.D.3d 359 (1 ^st Dept. 4/10/08)

XX. MISCELLANEOUS

Hernandez v. Columbus Center, LLC , 50 A.D.3d 597 (1 ^st Dept. 04/29/08)

The jury returned a verdict in favor of the plaintiff on his Labor Law §200 and §241(6) claims, awarding $15,300.00 for past pain and suffering and $127,500.00 for future pain and suffering. The Court affirmed the verdict of liability under §200 and found that the award for past pain and suffering was insufficient in light of three years of lost wages, "An award of $100,000.00 for past pain and suffering over three years is reasonable." Plaintiff had sustained a partial meniscal tear which required out-patient surgery, crutches, the use of a cane and physical therapy. The Court threw out the judgment on the §241(6) claim after determining three out of the four Industrial Code Rules submitted to the jury were inapplicable as a matter of law, because all four were submitted as one question to the jury; hence, there was no way to conclude which rule they determined was violated and served as a proximate cause of plaintiff's injury.

Karim v. Natural Stone Industries Inc. , 19 Misc.3d 353 (Queens County, 01/18/08)

An interesting discovery issue was at the heart of this decision involving plaintiff's employer, who was third-partied into the case based on allegations that plaintiff sustained a "grave injury" due to the brain injury/cognitive deficits he supposedly suffered. Apparently, plaintiff had access to a home computer and the employer wanted a "clone" of the hard drive of the computer to demonstrate the extent of his brain injury, or lack thereof. The Court denied the application since there was proof other family members had used the computer. Therefore, it was not relevant or possible to use it as evidence beyond what the plaintiff testified to. The Court also noted that the issue of employability, as it related to the plaintiff's head injury, can be ascertained by other means, such as through an examination by an occupational therapist and/or plaintiff's medical records.

Henry v. Devonshire Tire Co., 50 A.D.3d 638, 854 NYS2d 546 (2 ^nd Dept. 04/01/08)

Initially, plaintiff alleged common law negligence and violations of the Labor Law but subsequently withdrew the Labor Law claims. The Court dismissed the common law negligence claims and, on appeal, plaintiff attempted to argue yet another theory of liability which the Appellate Division refused to consider as not having been raised in the lower court.

Brummer v. Town of Tonawanda , 48 A.D.3d 1127 (4 ^th Dept. 2/1/08)

This case involves a motion over how the attorney's fees in the underlying Labor Law case should be divided. The injured plaintiff hired the first set of attorneys, who commenced plaintiff's underlying Labor Law case and made the motion for summary judgment. Shortly after the motion was made, the plaintiff switched attorneys. The motion for summary judgment was granted and the substituted attorneys concluded the action with a settlement of $1.75 million. The lower court determined the first set of attorney's was entitled to "$169,786.67 or one-third of the net attorney's fees generated by the settlement." The Court rejected appellant's argument that it was entitled to the entire fee because the substituted attorney committed legal malpractice in not appealing from that part of the Court's decision on the motion for summary judgment which dismissed the action against the town, even though it granted plaintiff's summary judgment against the co-defendant. The Court noted that any claim that the substituted attorneys committed malpractice is an issue to be determined in an action between the injured worker and his first set of attorneys. Moreover, any sums to be recovered based on such a claim belongs to the injured worker, not the attorneys initially hired by him. The Court did allow the attorneys to resubmit to the lower court clarification on the issue of whether there was any discrepancy between one-third of the net fees being equal to the dollar amount computed by the Court.

Lucido v. Mancuso , 49 A.D.3d 220 (2 ^ndDept. 02/01/08)

Plaintiff, a carpenter, commenced an action alleging Labor Law claims as a result of his fall from a scaffold. Six years later, the plaintiff died and the death certificate stated as the cause of death "acute mixed drug intoxication (cocaine and heroin)." After an Administratrix was appointed, a motion was made to amend the complaint to add a cause of action for wrongful death. Initially, it was denied on the basis there was no proof on the motion that the claim had merit. A motion to renew the motion was made, this time with an affidavit of a physician who concluded that the plaintiff's death was due to chronic pain which caused him to relapse into a substance abuser. The Court denied this motion, stating the affidavit was speculative and, therefore, plaintiff failed to demonstrate a meritorious cause of action justifying the amendment. In a lengthy decision, the Second Department reversed a prior ruling in Bedarf v. Rosenbaum, 286 A.D. 1103, where the Court required that a showing of merit was required to add a cause of action alleging wrongful death. In a lengthy examination of the history leading to this conclusion, the Court noted "we stated no reason for this requirement, but merely asserted it. And, we relied on no authority." Amendments such as this are governed by §3025(b) which allows the amendment absent a showing of prejudice or surprise resulting from a delay in seeking leave and the applications are to be freely granted unless there is palpably insufficient or patently devoid of merit. Such is not the case here.

Erdman v. Dell , 50 A.D.3d 627 (2 ^nd Dept. 04/01/08)

The Court reversed the granting of summary judgment to the plaintiff on this legal malpractice claim. Apparently, defendant failed to sue the general contractor in a Labor Law claim before the statute of limitations expired. However, plaintiff's motion failed to demonstrate that, had the general contractor been sued, he would have been successful on his §240(1) claim. There still exists an issue of fact as to whether the scaffold from which he fell provided proper protection or whether his failure to lock the wheels was the sole proximate cause.

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