Category Archives: Labor Law

Accident Report Alone Sufficient for Summary Judgment in Labor Law Claim (NY)

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In Weicht v. City of New York, the plaintiff was injured when he fell from a ladder while working on the job site. However, plaintiff could not provide any details regarding the cause of his fall to support his motion for summary judgment under Labor Law § 240(1). Instead, plaintiff relied on a post-accident OSHA report to establish that the bottom of the ladder he was standing on suddenly slipped out from beneath him, causing his fall.  The lower court ruled that the evidence set forth was sufficient and granted plaintiff summary judgment.

On appeal, the First Department held that the defendant failed to properly challenge the admissibility of accident report during the original motion and could not raise the issue on appeal. But regardless, the First Department also opined that the report was admissible evidence because it constituted a business record. In addition, contained within the OSHA report was a statement from the defendant employer regarding the cause of the accident which was was admitted as a vicarious admission of an employee.   As such, the award of summary judgment was affirmed – despite any testimony from plaintiff regarding how the accident occurred.

Thanks to Geoffrey Blue for his contribution to this post and please write to Mike Bono for more information.

NY Labor Law – Strict Liability – Strict Interpretation

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New York Labor Law actions involve issues of strict liability — not negligence, a significant distinction. This distinction figured heavily in the court decision of Bridgemohan v. Cornell Group, Inc. The case arose out of a fall from an unsecured ladder that was not equipped with rubber feet.  The plaintiff had been working at a multi-family home patching cracks in the wall of a garage.  The ladder slipped as he ascended it causing him to fall onto concrete ground.

The plaintiff moved for summary judgment under Labor Law §240(1), and the defendants made two arguments in opposition. First, defendants argued that plaintiff was the sole proximate cause of his injuries.  Second, defendants argued that plaintiff was not a protected class under the statute since he had not been directly hired by them to do the work.

As to the first argument, there was speculative testimony from the defendant property owner that the plaintiff had attempted to do a jump turn while on the ladder, which caused the fall.  The judges looked dubiously upon this testimony given the position and vantage point of the witness.  Ultimately, this testimony proved unavailing in any event.  Even assuming plaintiff was negligent in doing a jump turn, this would not absolve the defendants from strict liability resulting from the failure to provide proper equipment, a statutory protection for the work he was doing.  Elicited testimony which attempts to place fault on the plaintiff is irrelevant if a violation of a statute in any way caused the accident.

Any negligence on his part would be insufficient to constitute an unforeseeable or extraordinary act that would be a superseding cause of the accident.

The court likewise was not persuaded that plaintiff was a volunteer and not a worker. While the defendants had in fact hired another person to do the job, that person had, in turn, hired the plaintiff to assist. The defendants paid the person they hired who paid the plaintiff.  The plaintiff testified that he expected to be paid, and the contractor who asked plaintiff to assist with the work testified that he had always planned to, and did pay plaintiff.  Thus, plaintiff was part of the protected class of workers.

Thanks to Christopher Goia for his contribution.

For more information, contact Denise Fontana Ricci at

Lack Of Contract Allows GC To Escape Labor Law Claim (NY)

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General contractors are virtually always caught in the web of Labor Law construction claims in New York.  But recently, the Appellate Division, First Department dealt with an interesting issue: what happens when plaintiff is injured performing work outside of the relevant contract between the GC and the owner?

In Ortiz v. IGBY Huntlaw LLC,plaintiff Wilson Ortiz was injured when he fell off a ladder while painting an apartment in Manhattan.  He sued the property owner, IGBY Huntlaw LLC, and the general contractor, A.E. Grayson & Co., Inc., under claims  negligence, and violations of Labor Law 200, 240(1) and 241(6).  Plaintiff was employed as a painter by Uriu, LLC, an entity that was retained directly by the property owner – and there was no contract between Uriu and Grayson.

Grayson moved for summary judgment at the end of discovery, relying on the fact that the contract between Grayson and the owner specifically excluded painting from the services to be provided.  They also argued that there was no contract between Grayson and plaintiff’s employer and Grayson did not have actual or contractual authority to control the plaintiff’s work.

In opposition, the plaintiff submitted a post-deposition affidavit stating that a Grayson supervisor directed plaintiff and his co-workers as to where and how they should perform their work.  This affidavit contradicted the testimony of the Grayson witness and the witness from Uriu, both of whom testified that only the Uriu foreman could or would direct the plaintiff’s work.  The trial court held that the plaintiff’s affidavit was sufficient to establish a question of fact as to whether Grayson directed, supervised or controlled plaintiff’s activities on the project.

The Appellate Division, First Department reversed, and granted Grayson’s motion for summary judgment dismissing all of the plaintiff’s claims.  The Court held that because plaintiff’s work was outside the scope of Grayson’s contract with the owner, Grayson had no right to control the work and could not be held liable under Labor Law §§ 240(1) or 241(6).  The Court also dismissed the common law negligence and Labor Law 200 claim, because Grayson had no authority to control the work that caused the plaintiff’s injury.

Noticeably absent from the Appellate Division’s holding was any consideration for the allegations that Grayson was actually directed the plaintiff’s work.  Because Grayson did not have the authority to direct and control the plaintiff, the Court found that it could not be held liable for the plaintiff’s injuries under the Labor Law.   Perhaps if plaintiff’s claims that Grayson directed his work had been corroborated by another witness, the court might have reached a different result.  But the mere allegation by plaintiff that another party directed his work at the time of his accident – which was contrary to the contractual language – was found insufficient to create a question of fact in the First Department.

Thanks to John Collins for his contribution to this post and please write to Mike Bono if you are interested in more information.

Iron Worker… Ladder… Elevation… No Labor Law § 240 Claim (NY)

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Labor Law § 240 requires property owners, construction companies, and contractors to protect their workers from elevation-related risks, and holds them strictly liable for plaintiff’s injuries if they fail to do so. Counsel in Labor Law cases therefore spend large amounts of time and effort litigating whether plaintiff’s injuries implicate Labor Law § 240, as the answer will often significantly affect a case’s value. The Second Department’s recent decision in Guallpa v Canarsie Plaza, LLC informs us, however, that not all plaintiffs injured off the ground may assert Labor Law § 240 claims.

In Guallpa, plaintiff, an iron worker, was standing on a ladder while working to secure an overhead steel beam to the building structure. While plaintiff was working, another employee, operating a forklift at ground level, struck a portion of the beam plaintiff was working on. This caused the beam to shift and, unfortunately, pinned plaintiff’s arm between the beam and a nearby concrete wall, inflicting injuries. Both plaintiff and defendants cross-moved for summary judgment as to plaintiff’s Labor Law § 240 claim, and the trial court denied both motions.

On appeal, the Second Department reversed the trial court decision and granted summary judgment to defendants. The Second Department, focusing on the purpose of Labor Law § 240, noting that while the law is meant to protect workers from elevation-related risks, merely working above ground level does not automatically entitle workers to its protections. Specifically, the Second Department identified Labor Law § 240 as guarding workers against two types of risks: elevation-related (a worker falling from a height) and gravity-related (objects falling from a height onto the worker). Therefore, the Second Department concluded, because plaintiff was not injured by either a falling object or by falling from a height, he could not properly assert a claim under Labor Law § 240. Unfortunately for defendants, the Second Department then reversed the trial court’s ruling that they were entitled to summary judgment on plaintiff’s Labor Law § 241(6) claim, holding that they had failed to offer facts sufficient to refute plaintiff’s claim that the steel beam that injured him was improperly secured pursuant to a potentially applicable Industrial Code provision.

Guallpa serves as a reminder to all Labor Law defense practitioners to carefully scrutinize a plaintiff’s bill of particulars and deposition transcript to establish the precise mechanism of plaintiff’s injury. In a field where ladders and heights often indicate increased settlements and damages awards, be sure to establish if plaintiff is in fact entitled to assert a Labor Law § 240 claim.

Thanks to Peter Luccarelli for his contribution.

For more information, contact Denise Fontana Ricci at .

 

Work Area By Any Other Name Would Still Be a Work Area (NY)

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Victor Caminito was employed by a nonparty subcontractor on a 30-story building under construction that was ultimately going to be a condominium with retail space on the first floor.  On the day of the accident, plaintiff spent the morning setting marble in the lobby of the building. After lunch, he was instructed by the project supervisor for the construction site, to clear out a room that was off the lobby, where many of the trades had stored their equipment and materials.  In the process of removing material stored in it, plaintiff was injured when, while walking backwards with a wheelbarrow, he tripped and fell over a stack of metal studs located on the floor.

In Caminito v Douglaston Dev., LLC, the plaintiff brought suit under Labor Law § 241(6) and claimed specific violations of the Industrial Code.  That statute imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations” contained in the New York State Industrial Code.

Plaintiff’s claim was predicated on Industrial Code (12 N.Y.C.R.R.) § 23-1(e)(2), which provides, in pertinent part, that work areas “shall be kept free from accumulations of dirt and debris and from scattered tools and materials”.  The room where plaintiff fell was variously described as approximately 10′ X 15′ or 20′ X 40′ and had only one entrance/exit. Both plaintiff and the project supervisor testified at their depositions that the material in the room needed to be removed to complete its construction. The project supervisor testified that this room was part of the overall building construction project.

Defendants moved for summary judgment to dismiss the Labor Law § 241(6) claim.  Defendants argued that the area where plaintiff fell was not a “work area” but rather a storage room and thus not a work area as defined by the statute.   The Court disagreed finding a question of fact as to whether the studs were scattered in plaintiff’s work area.

The testimony of both plaintiff and the project supervisor clearly stated that construction was going to take place in that room. Indeed, the purpose of removing the material stored in that room was to enable the construction work to take place. Although plaintiff was not actually performing his job as a marble setter at the time of the accident, under these circumstances his activities bring him within the ambit of the statute.

Defendants have to be aware that scattered tools and building materials on a construction site presents a difficult fact pattern to overcome when analyzing liability under Labor Law § 241(6).

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at

 

Homeowner Escapes Labor Law Liability for Contractor’s Ladder Fall (NY)

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Homeowners are free from liability under common law negligence, as well as under Labor Law §§§ 200, 240(1) and 241(6), to a contractor performing work at their residence where their general awareness of the state of the premises is insufficient to impute notice of an unsafe condition and where they did not direct or control the manner in which the plaintiff performed his work, create the allegedly dangerous condition that caused the accident, or provide the plaintiff with any of his materials or equipment.

In Dasilva v Nussdorf , the plaintiff was allegedly injured when he fell from a ladder while painting a cottage located on the defendants’ 16-acre residential estate. The cottage had formerly served as the estate caretaker’s residence and following his departure, was being renovated by the homeowners, who had hired the company that employed plaintiff. Plaintiff testified that the ground on which the ladder was placed was uneven, soft, and filled with debris as a result of ongoing landscaping. The ladder, which plaintiff erroneously believed was owned by defendants, sunk into the ground, causing him to fall.

The lower court granted the summary judgment motion of defendants, dismissing plaintiff’s complaint which alleged violations of Labor Law §§ 200, 240(1), and 241(6), as well as common-law negligence. The court found that the exemption under the Labor Law §§ 240(1) and 241(6) for owners of single and two family houses applied in this instance where the homeowners established that the work being performed directly related to the residential use of the cottage and that they did not direct or control plaintiff’s work.

The court also found that dismissal of the claims pursuant to common law negligence and Labor Law § 200 ( statutory version of the common law duty of an owner to provide employees with a safe place to work ) was appropriate where the homeowners also demonstrated that they did not create the alleged dangerous conditions or have actual or constructive notice of such conditions because they did not own the ladder or provide plaintiff with any  of his materials or equipment. With respect to the allegedly uneven and soft ground filled with debris, the defendants established that they did not create the condition and although they may have had general awareness that the ground was uneven and soft, such awareness was insufficient to impute notice of an unsafe condition.

The Appellate Division, Second Department agreed with the ruling of the Supreme Court and accordingly, affirmed its decision regarding the dismissal of plaintiff’s complaint.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at .

Comparative Negligence Crushes Plaintiff’s Labor Law §241(6) Claims (NY)

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In Cardenas v 110127 Cabrini Apts. Corp., 2016 NY Slip Op 08835 (2d Dept. 2016), plaintiff was injured when the ladder he was using became unlocked, causing him to fall and sustain injuries. Plaintiff claimed that he notified his employer of the problem prior to the accident but was told to continue using the ladder anyway.

Plaintiff commenced suit against the building owner and managing agent as all claims against his employer were barred by the Workers Compensation law. All parties moved for summary judgment. The lower Court granted plaintiff’s motion in its entirety and denied the defendants motions.

On appeal, the Court held that plaintiff’s continued usage of the ladder, despite having knowledge of a defect, created a question of fact as to plaintiff’s comparative negligence. The Court determined that since plaintiff failed to meet his burden in showing that he was free from comparative negligence, that the defendants motions as to Labor Law §241(6)should have been granted and reversed the lower court’s decision.

Though Labor Law §240 was still an issue in this case, the Court has shown that plaintiff must prove that he was free from fault to succeed under Labor Law §241(6) and that not all Labor Law provisions are slam dunks for plaintiffs.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Pipe To The Head Not A Valid Labor Law Claim (NY)

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In Palomeque v. Capital Improvement Services, a worker was descending a ladder when he swung a pipe and accidentally struck plaintiff John Palomeque in the head.  Plaintiff, an electrician on this construction site, followed the typical playbook and alleged Labor Law §240 as one of his claims in the lawsuit because a ladder was involved in the accident. And it seemed to be the right move, as the trial court awarded plaintiff summary judgment.

But on appeal, the Appellate Division, Second Department, reversed that part of the decision on the violation of Labor Law §240(1) because the accident was “not the direct consequence of gravity to an object or person.”  In other words, plaintiff’s injury wasn’t caused by the use of a ladder – he was injured because another worker swung a pipe without looking to see if anyone was nearby.

Thanks to Geoff Bleu for his contribution to this post and please write to Mike Bono for more information.

Tailgating Plaintiff Loses Labor Law Claims (NY)

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New York Labor Law § 240(1) protects laborers from certain gravity–related risks in connection with the in the erection, demolition, repairing, or altering, of a building or structure. The statutory scheme imposes strict liability on all contractors and owners who fail to provide adequate protection from these gravity-related risks.

In Eddy v. John Hummel Custom Builders Inc.,the plaintiff was injured when he fell off the back of a flatbed truck and was struck by a 100-lb piece of iron grate. Plaintiff and his coworker had loaded heavy construction material, including the iron grate, onto the back of a pickup truck to transport it across the construction site. The men placed the cast iron grate on the open tailgate of the truck because the remainder of the truck bed was full. As they were only traveling a short distance, they did not secure any of the materials that they placed onto the truck. The truck bed did not have any seat or platform to sit. Plaintiff’s co-worker advised him to sit in the front passenger seat because he thought it was unsafe for him to ride in the back of the truck. But rather than taking this advice, the plaintiff decided not only to ride in the back of the truck, but to sit on top of the cast iron grate, which was lying on the truck’s open tailgate, with his feet dangling over the edge of the tailgate. When his coworker began driving, plaintiff fell to the ground, and the cast iron grate fell onto the plaintiff, causing him to sustain injuries.

Plaintiff sued alleging violations under §240(1) and § 241(6) of the Labor Law. The general contractor moved for summary judgment on all claims, claiming that §240(1) and §241(60 were inapplicable to plaintiff’s injuries. The trial court denied the motion, and the general contractor filed an appeal to the Second Department. Citing case law holding that workers who fell from the back of a pickup truck, or who were injured by objects being unloaded from a flatbed truck while standing on the ground next to the truck are not protected by § 240(1).  The Second Department determined that the plaintiff’s accident did not arise out of an elevation-related risk and further held that the plaintiff’s decision to sit in this position was, as a matter of law, the sole proximate cause of his injuries and the decision was reversed in favor of the defendant.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono if you would like more information.

There May be Some Teeth to Plaintiff’s Labor Law 241(6) claim

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In Williams v. River Place II LLC et al, plaintiff alleged violations of Labor Law § 200, Labor Law § 241(6), common-law negligence and products liability when he was injured using a power saw with a blade with broken teeth.  On appeal, the First Department affirmed the lower court’s dismissal of plaintiff’s Labor Law § 200 and common law negligence claims because the accident was not caused by a dangerous worksite condition.  However, the First Department denied the owner, agent, and general contractor defendants’ motions for summary judgment as to plaintiff’s Labor Law § 241(6) claim because evidence that there were teeth missing from the saw blade raised issues of fact as to whether those defendants violated the Industrial Code provision that requires all safety devices, safeguards and equipment to be kept in sound and operable condition and whether that violation was a proximate cause of plaintiff’s accident.

This decision underscores the difficulty that owner, agent, and general contractor defendants face in avoiding Labor Law § 241(6) liability for jobsite accidents.  In this case, plaintiff further claimed that he twice asked his supervisor for a replacement blade which was not furnished and this evidence was sufficient to create an issue of fact as to whether defendants violated the applicable Industrial Code provision and whether this violation was the proximate cause of plaintiff’s accident.

Thanks to Lauren Branchini for her contribution to this post.