Translation Dispute and Hearsay Testimony Precludes a Finding of a Question of Fact in Labor Law Case Resulting in Summary Judgment for Plaintiff (NY)

In Nava-Juarez v Mosholu Fieldston Realty, LLC, the Appellate Division reversed a Supreme Court decision and granted partial summary judgment to the plaintiff in a Labor Law case, and addressed the issue of hearsay testimony in opposition and translation disputes.

The plaintiff claimed he was injured when the ladder he was working on shifted suddenly.  In support of his summary judgment motion, the plaintiff provided an affidavit of a coworker who witnessed the accident and averred that plaintiff was painting the exterior facade of defendant’s tavern when his ladder shifted, causing plaintiff to fall from his position three-quarters of the way up the ladder.

In opposition, the defendants argued that a workers compensation form contained statements from the plaintiff with a different version of how he was injured.  The plaintiff’s workers compensation form stated the accident happened “while walking I fell down stairs.”

The Supreme Court Bronx County denied the plaintiff’s motion for partial summary judgment under Labor Law § 240(1).  On appeal, the Appellate Division reversed this ruling.  In its opinion, the Appellate Division held that the defendants failed to raise a triable issue of fact because hearsay, standing alone, is insufficient to defeat summary judgment.

Further, the Court noted that the workers compensation form was prepared by plaintiff’s worker’s compensation attorney with the aid of a translator.  Plaintiff testified that he told the translator “Mientras estaba trabajando me cai de una escalera,” and asserts that the statement should have been translated as “While working I fell off a ladder.”  The decision notes that the Spanish word “escalera” may be translated as either “stairs” or “ladder” and in this case, there were no “stairs” to speak of as the premises is a one-story building and did not have an exterior staircase.   The Appellate Division ruled that the plaintiff was incapable of discovering the error in the translation of the description of his accident because he could not read English and correct the statement.

The summary judgment denial was reversed because the defendants were obligated to show that plaintiff was the source of the information recorded in the workers compensation form indicating that he fell from “stairs,” and that the translation was provided by a competent, objective interpreter whose translation was accurate, a fact generally established by calling the translator to the stand at trial.

Special thanks to George Parpas for his contribution to this post.

Decedent’s Statements to His Wife Admissible as Hearsay Exception, Defeating Estate’s MSJ (NY)

In Caminiti v Extell West 57th Street LLC, 2018 WL 5914129, 2018 N.Y. Slip Op. 07667 (1st Dep’t 2018), the decedent in a wrongful death Labor Law suit made a statement to his wife in the ER after an accident that he “should have known better” than to use a ladder as he did.  He later died.  Plaintiff, the administratix of the deceased’s estate, sued under Labor Law §240(1) and Labor Law §241(6) against defendants, the owner, developer, and general contractor of the project.

Plaintiff made a motion for partial summary judgment on Labor Law §240(1) and the defendants made a motion for summary judgment to dismiss the complaint.  Judge Arlene Bluth in New York Supreme, granted plaintiff’s motion and denied the defendants.  Upon appeal, the First Department modified the order to also deny the plaintiff’s motion and granting defendants’ motions as to the Labor Law §241(6) claims based on several Industrial Code sections.

The First Department ruled that the lower court properly ruled that the now-deceased husband’s statement regarding his accident was admissible as a declaration against interest in order to establish his wife, as an adminstratix of the deceased husband’s estate’s, prima facie case under Labor Law §240(1).  The statements showed, as a matter of law ,that the ladder started to move while he was working on it, and when he tried to stabilize the ladder, it tipped and struck him in the chest.  The First Department ruled that plaintiff was not required to present further evidence that the ladder was defective.

However, the defendants raised triable issues of facts as accident reports showed that while he was on the ladder, he felt chest pains and his legs became “unsteady” or “wobbly.”  Furthermore, his co-workers saw the ladder in an upright position about 10 feet away from the decedent when he expressed that he was suffering chest pains.  As such, plaintiff’s partial motion for summary judgment on Labor Law §240(1) was dismissed.

Furthermore, the First Department ruled that since plaintiff failed to specifcy any particular subsection or subdivisions of the provisions Industrial Code sections, the Labor Law §241(6) claim as to those provisions were considered abandoned. As such, Defendant’s motions for summary judgment to dismiss the complaint was granted as to those provisions.

The fact that hearsay evidence from the deceased was admitted through the administratix’s testimony shows the value in a plaintiff administrator’s testimony, not just to damages, but potentially to liability.  Proactive defense counsel should be wary of such testimony while taking depositions and be ready to cross-examine the administrating witness attempting to bring in any hearsay evidence from the deceased.

Thanks to Jonathan Pincus for his contribution to this post.  Please email Brian Gibbons with any questions.

Second Department Affirms Labor Law SJ Denial Due to Conflicting Accident Accounts (NY)

In Giannas v 100 3rd Ave Corp, Plaintiff was repairing fencing on the fourth floor of a building when he noticed what appeared to be a metal stud nailed across an open window. Plaintiff crawled onto the scaffolding outside the building  to knock the stud into the building by hitting it with his hammer. However, the scaffolding moved toward the street, causing him to lose his balance and fall through the window, into the building.

Plaintiff alleged violations of Labor Law §§ 200, 240(1) and 241(6), and moved for summary judgment on Labor Law §240(1) cause of action but the Court denied the motion. In addition, the Court granted the construction manager’s motion for summary judgment dismissing the complaint as asserted against it. Finally, the Court granted the subcontractor scaffolding company’s motion for summary judgment dismissing the Labor Law §§ 200, 240(1), and 241(6) causes of action, and denied that branch of its motion which was for summary judgment dismissing the common-law negligence cause of action. Plaintiff and the scaffolding supply and installation company appealed the Court’s decision.

On appeal, the Second Department affirmed the lower court’s order granting the construction manager summary judgment on Labor Law §240(1) reasoning that the construction manager had no control of the means and methods of work under the contract and did not control the work or supervise safety.  The Appellate Court further affirmed the lower court’s denial of plaintiff’s motion for summary judgment on Labor Law §240(1)because there were conflicting accounts of how plaintiff fell, including whether he had ever mentioned that the scaffold moved causing him to fall.  Finally, the subcontractor’s motion for summary judgment on common-law negligence was denied because of question of subcontractor’s affirmative negligence for launching an instrumentality of harm under Espinal, which also required denial of subcontractor’s motion on contractual indemnity.

Thanks to Meg Adamczuk for her contribution to this post.  Please email Brian Gibbons with any questions.


Coming up Short – Second Circuit Appellate Court Requires Significant Elevation Difference for Labor Law §240(1)

In Simmons v. City of New York, Plaintiff was injured while working as a plumber on a project for the City of New York. Plaintiff was using a pallet jack to move an air compressor weighing over 600 pounds. The compressor was lifted six inches off the ground and was only secured by two pieces of scrap wood wedged around the sides of the compressor. Plaintiff was pushing the compressor from behind when the pallet jack ran over concrete debris and stopped short causing the compressor to roll off onto plaintiff’s ankle.

The lower court granted summary judgment dismissing the Labor Law §240, §241(6), and §200 claims.  On appeal, the Second Department affirmed dismissal of the Labor Law §240 claim holding that it was not enough that the injury was caused by the application of gravity, there must be a significant elevation difference. A plaintiff must show that “at the time the object fell, it was being hoisted or secured, or that the falling object required securing for the purposes of the undertaking” and the object fell because the absence of a safety device.”

Notwithstanding the Labor Law §240 dismissal, the Second Department reinstated the §241(6), and §200 claims against the general contractor.

The Appellate Court’s decision with regards to Labor Law §240(1) could be impactful with how we analyze the “elevation related risks” required by the statute. When an object falls from a short height or tips over from the same level as the plaintiff, courts often look at the weight of the object to determine how much force it was able to generate during its fall. Here, the court did not analyze the weight or the force created by the object, but focused solely on the height it fell from and whether it was the type of activity which required a safety device as enumerate in Labor Law §240.

Thanks for Jesse Sussmane for his contribution to this post.

Church is a 1-2 Family Dwelling Under the Labor Law’s Homeowner Exception (NY)

In Bautista v Archdiocese of NY, Plaintiff was injured when he fell from a scaffold while repairing a detached garage associated with a church rectory used for both residential and church purposes. Against the Church, plaintiff asserted common-law negligence and claims under the scaffold law and statute requiring owners and contractors to provide reasonable and adequate protection and safety for construction workers, and the workplace safety statute applicable to owners and contractors.

Plaintiff initially moved for partial summary judgment on the Labor Law § 240(1), and the Archdiocese cross-moved for summary judgment dismissing the complaint. Both motions were denied. The Archdiocese appealed.

On appeal, the Appellate Division First Department  reversed, granting the Archdiocese’ motion for summary judgment on Labor Law §§ 240(1) and 241(6) under the 1-2 Family Dwelling exception for “owners of one and two-family dwellings who contract for, but do not direct or control the work”. The Court held that the certificate of occupancy indicated that the record constituted a dwelling and a private garage, and that Plaintiff’s assertions that the garage was exclusively restricted to use by teachers at an elementary school owned by the church were unsupported by the record, thereby failing to raise issues of fact as to the applicability of the homeowner’s exemption.

Moreover, the Archdiocese established that it did not have the authority to supervise or control the job and thus was not liable as an agent of the owner under Labor Law § 240(1) and Labor Law § 241(6). As such, the Court held that the Labor Law § 200 and common-law negligence claims should be dismissed because plaintiff’s fall from scaffolding involved the means and methods of his work, which were supervised and controlled solely by his employer.

Thanks to Margaret Adamczak for her contribution to this post.

Failing to Preserve Arguments for an Appeal and Facts that “May or May Not” Exist (NY)

In Gordon v City of New York, the plaintiff sued the LIRR, the City of New York, and the Metropolitan Transportation Authority (“MTA”) for injuries that occurred while performing excavation of rock under Grand Central Terminal.  Plaintiff fell from a ladder that slipped out from plaintiff and he fell to the tunnel floor while fixing lights 15-20 feet above him.  The defendants moved for summary judgment dismissing the complaint, which included Labor Law §§ 240(1) and 241(6) claims while the plaintiff moved for summary judgment on the issue of liability on the Labor Law §240(1) claim.  The lower court entered an order granting the City of New York and the LIRR’s motions for summary judgment and denying plaintiff’s motions against all defendants.

On appeal, the First Department affirmed the order granting the City of New York and the LIRR’s motions because affidavits were submitted based on the affiant’s work and job duties for the City of New York and the LIRR and their knowledge of and familiarity of their business operations.  The affidavits established that they did not contract for plaintiff’s work, nor did these defendants perform, supervise, or control any construction work at the subject premises.  As plaintiff’s sole theory of the City’s ownership was that it owned land on which the project was located was not raised before the motion court, it was not properly before the Court.  The plaintiff did not raise any other evidence to dispute the claims and the order granting summary judgment for the City of New York and the LIRR were affirmed.

However, on appeal, plaintiff’s entitlement under Labor Law §240(1) against the MTA, however was successfully argued because the record established a failure to provide plaintiff with proper protection for him to perform the elevation-related task of re-positioning the stadium light.  The MTA’s opposition with an engineer’s testimony that there “may or may not have been” platforms available to tie the ladder to, was not enough to raise a triable issue of fact.  The lower court reversed as to the MTA.

This opinion contains a lesson about the long term effects of failing to raise an argument in the motion court that not only affects the decision in the motion court, but also affects the appeal.  Thus, it is important to have counsel with the foresight to preserve arguments in anticipation of appeal.

Furthermore, the case also demonstrates the importance of early defense counsel oversite in investigating the facts and witnesses with knowledge in anticipation of motion practice.  Experienced counsel will be able to deal with gaps of knowledge from the witnesses provided by an insured.  Rather than rely on such ambiguous testimony regarding things that “may or may not” exist, experienced counsel should take steps to investigate further to find records or other witnesses  that may have actual knowledge of the circumstances of the accident that fill in those gaps to prevent a plaintiff being granted an early summary judgment.

Thanks to Jonathan Pincus for his contribution to this post.

The Project Itself is Not the “Safety Device” for Labor Law Purposes (NY)

The New York Labor Law imposes a non-delegable duty and absolute liability on owners and general contractors for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks.  To escape liability under this statute, defendants have been known to make some novel arguments.  For example, in Ren v. Gioia St. Marks the plaintiff was injured while working on a kitchen renovation project.  During the project, he crouched down on a top of a ventilator, which he had attached to a ceiling beam, in an attempt to move it.  Unfortunately, the ventilator tipped over and the plaintiff sustained injuries.

In an attempt to establish that the plaintiff was provided with a safety device, the defendant argued that the ventilator itself was the safety device.  But the First Department rejected this argument, and granted the plaintiff’s motion for summary judgment.  In doing so, the court reasoned that the ventilator was not a safety device designed to protect the plaintiff from elevation-related risks, but rather, was the object of the construction project itself.

This ruling is instructive for construction professionals because it shows that safety planning should take place before a project begins, not concocted out of thin air after the fact.  Thanks to Michael Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.

Be Wary of Title of “Subcontractor” in Labor Law Actions

In Dan Eliassian v. G.F. Construction, Inc., plaintiff, an owner of a single-family house, hired defendant to perform excavation work to prepare for the addition of a room to the home.  Plaintiff did so in his capacity as president of Alliance Real Estate, Inc.  After defendant completed phase one of the project, and was off-site, plaintiff visited the property to “inspect the work” when he slipped on oil which he alleged leaked from a defective hydraulic line of a backhoe brought to the site by defendant and used by the defendant in its work.

Plaintiff sued defendant alleging violations of Labor Law 200, 240, and 241(6).Defendant moved for summary judgment on the Labor Law 240(1) and 241(6) causes of action on the basis that plaintiff was not “employed” at the site within the meaning of the Labor Law, and defendant was not an owner, agent, or general contractor responsible for the work site.  Plaintiff opposed the motion with an affidavit in which he stated that he was on site specifically to inspect the work.  The lower court denied defendants’ motion for summary judgment.

On appeal, the Second Department found that an individual inspecting the work on behalf of a general contractor is a protected activity covered by Labor Law 240(1) and 241(6) if the individual can show that they were both permitted to work on a building or structure, and were hired by someone.  Here, as plaintiff was on his own property on behalf of his company Alliance to inspect the progress of the work of the defendant, a subcontractor hired by Alliance to perform excavation work, he was a proper plaintiff under Labor Law 240(1) and 241(6).

Further, the defendant’s claim that it was not the general contractor or agent of the owner was insufficient to defeat summary judgment, as a subcontractor may be liable for violations of those provisions if the owner or general contractor delegated to the subcontractor the duty to conform to the requirements of the Labor Law by granting the subcontractor authority to supervise and control the work that brought about the injury.

Since defendant was the only contractor working at the site, and had exclusive control over directing the work and implementing safety measures, and plaintiff was merely on site to inspect the progress of the work, there were triable issues of fact as to whether the defendant could be liable under Labor Law 240(1) and 241(6) on the ground that it had control of the work site and was delegated the duty to enforce safety protocols at the time of the incident, despite the fact that the defendant was not the owner or acting as the general contractor. As such, the Second Department affirmed the denial of defendant’s motion for summary judgment.

This case is significant in reminding defendants that regardless of the titles assigned to construction companies in contracts (“contractor,” “general contractor,” or “subcontractor”), a defendant may still be found liable under the Labor Law if it had control over, and ability to direct, the work, and control over safety procedures at the project site.

Thanks to Valerie Prizimenter for her contribution to this post.

Question of Fact in Falling Object Case – But No Question as to the Devastating Consequences for Failing to Provide Discovery

Thomas Garbett commenced a personal injury action against Wappingers Central School District (“Wappingers”) to recover damages after a cast-iron section of a boiler on its property fell and crushed his foot. Wappingers commenced a third-party action against the plaintiff’s employer, Siteworks Services NY Corp. (“Siteworks”), which, at the time of the accident, was servicing the boiler pursuant to its contract with Wappingers. The Supreme Court subsequently struck Siteworks’ third-party answer as a sanction for its failure to comply with discovery demands and orders.

Plaintiff testified at his deposition that, at the time of the accident, Siteworks employees were disassembling the subject boiler section-by-section to fix a leak. However, the head custodian at the school where the plaintiff’s injury occurred testified at his deposition that the boiler was disassembled every summer for routine cleaning and refurbishing. The head custodian was also not aware of any problem with the boiler in need of repair during the time that the plaintiff was injured.

The plaintiff moved for summary judgment on the issue of Wappingers’ liability under Labor Law § 240(1), and Wappingers cross-moved for summary judgment dismissing the complaint. Wappingers also moved for summary judgment on the issue of common-law indemnification against Siteworks, arguing, among other things, that since Siteworks’ answer was stricken, it admitted that the injuries alleged by the plaintiff constituted a grave injury as defined in Workers’ Compensation Law § 11.

Supreme Court, among other things, denied the plaintiff’s motion and Wappingers’ cross motion on ground that triable issues of fact remained with respect to the applicability of Labor Law § 240(1) and causation, and granted that branch of Wappingers’ motion which was for summary judgment on the issue of common-law indemnification.

In Garbett v. Wappingers Central School District, 160 A.D.3d 812 (2d Dep’t 2018), the Supreme Court found, and the Appellate Division agreed, that the record was unclear concerning the degree to which the boiler sections were “components that require replacement in the normal course of wear and tear” (Esposito v New York City Indus. Dev. Agency, 1 N.Y.3d at 528), and therefore properly determined that triable issues of fact existed with respect to whether the plaintiff’s activity was repair work that would be covered under Labor Law § 240(1), or just routine maintenance.

The Supreme Court also properly concluded that triable issues of fact existed with respect to proximate cause. At the time of the accident, Siteworks employees were disassembling the boiler and moving each heavy section to the ground for the plaintiff to inspect. Testimony indicated that the Siteworks employees did not follow their typical procedure and opted to wedge a pipe against the section that eventually fell. Plaintiff also testified that boiler sections can remain upright without assistance after being detached from each other, and that he, an experienced boilermaker, was satisfied with the apparent stability of the section before it fell. Wappingers also submitted evidence supporting the conclusion that boiler sections do not require securing when they are detached from each other. Thus, triable issues of fact existed as to whether a safety device was required for the undertaking.

Labor Law § 240(1) protects workers from elevation-related hazards while they are involved in certain enumerated work activities. The statute applies when an employee is engaged in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure, as well as acts ancillary to those activities Labor Law § 240(1) does not, however apply to workers engaged in routine maintenance (Fox v H & M Hennes & Mauritz, L.P., 83 A.D.3d 889).

Labor Law § 240(1) imposes absolute liability on building owners and contractors whose failure to provide proper protection to workers employed on a construction site proximately causes injury to a worker. The decisive question is whether plaintiff’s injuries were the direct consequence of a failure to provide protection against a risk arising from a physically significant elevation differential and includes injuries caused by falling objects. Liability will attach where the plaintiff demonstrates that, at the time the object fell, it required securing for the purposes of the undertaking.

With respect to the third-party action, Siteworks’ third-party answer had been stricken for failing to provide discovery, so it admitted all traversable allegations in the complaint, including the basic allegations of liability and that the plaintiff sustained a grave injury, which allegation was necessary for the maintenance of the third-party action, under Workers’ Compensation Law § 11. Accordingly, the Appellate Division upheld summary judgment in favor of Wappingers on the issue of common-law indemnification. (The decision also upheld the denial of Siteworks’ Motion to renew, finding that Siteworks failed to offer new facts that would change the prior determination). And found the sole issue remaining in the third-party action to be the extent of Wappingers’ damages, if any. While there are no specific facts as to the default, this decision nevertheless serves as a cautionary reminder that that careful attention must be paid to discovery obligations.

Thanks to Vincent Terrasi for his contribution to this post. Please write to Tony Pinto for more information.

No Issue With The Ladder, No Problem

In Wu v. Yang, the plaintiff fell from an A-frame ladder while working in the defendants’ apartment.  The plaintiff testified that he had no prior issues with the ladder and was working well from the ladder when it suddenly moved and he fell.  The plaintiff did not know why the ladder shifted.

The plaintiff moved for summary judgment on his Labor Law 240 claim against the defendants, the defendants cross-moved to dismiss the compliant.  The lower court found that there was no §240 violation, as the plaintiff could not articulate how the ladder had failed.  All parties appealed.

The Second Department upheld the lower court’s decision as to the plaintiff’s motion but reversed the finding with regard to the defendants and re-instated the plaintiff’s Labor Law 240 claim against them.  The Appellate Division confirmed that not every fall from a height is a guaranteed 240 case and that, in order to prevail on a 240 claim, a plaintiff must establish that proper fall protection was not provided.  In other words, the plaintiff in the instant-action had to show that a proper ladder was not provided.  Nevertheless, the Court held that the question of whether proper protection was provided (whether there was in fact something wrong with the ladder that caused it to wobble) is a question of fact for a jury to decide, even in a case such as this where the plaintiff cannot articulate the reason for the ladder’s failure.

As defense counsel, we frequently defend against 240 claims where the plaintiff cannot articulate why the ladder moved and why they were caused to fall.  We frequently ask what else could we have given the plaintiff to protect them from this fall short of a plastic bubble to encase them in to prevent injuries.  While the Appellate Court’s decision once again protects workers who fall from a height, regardless of their description of the accident, it is not a guarantee win for the plaintiff at trial.  A jury in this action would still hear defense counsel’s argument (as opposed to cases where the plaintiff has already been awarded 240 and the matter proceeds to a damages-only trial) that the ladder was in good condition before the fall and was possibly not the reason why plaintiff fell.  The question of “what else could have been given to the plaintiff?” will be posed to a jury, affording the defendants a chance on prevailing with a defense verdict.

Thanks to Georgia Coats for her contribution to this post.  Please contact Tony Pinto for more information.