Just because construction work is underway on property, Labor Law §§ 200, 240(1), and 241(6) do not automatically apply to claim for an unrelated injury.  In Mammone v. TG Nickol & Associates, LLC, the plaintiff school maintenance worker was injured while working on roof mounted air conditioning units. Upon dispatch to the location, he climbed a permanently affixed ladder to reach the units, which he successfully repaired. After completing the repair, plaintiff determined the air filters on the units needed to be replaced. On his way back up the ladder to perform this task, he fell off the ladder and was allegedly injured.

Plaintiff commenced this action against various defendants, including TG Nickel, who was the construction manager for the construction work happening at the high school at the time of the accident.

The lower court found that TG Nickel established prima facie that plaintiff was neither engaged in an activity listed under 240(1) at the time of his accident nor was he performing construction, demolition, or excavation as described in 241(6), and dismissed these causes of action. The Appellate Division, Second Department, determined that the Supreme Court had properly dismissed these alleged violations of the Labor asserted by plaintiff against TG Nickel.

With respect to Labor Law § 200, liability exists against a defendant if there is evidence of a defective or dangerous condition at a work site that a defendant had or should have had knowledge of, or if that defendant had control over the means and methods of plaintiff’s work which caused the alleged injury. TG Nickel had argued to the lower court that the ladder used by plaintiff was not defective, a fact which plaintiff conceded. The lower court dismissed this cause of action based on TG Nickel’s lack of actual or constructive notice of any dangerous or defective condition of the ladder.

However, the Appellate Division found this was not the properly applied standard for evaluation of TG Nickel’s liability, as the plaintiff was allegedly injured as a result of the manner in which he performed his work, not because of any condition of the work site. Therefore, recovery against TG Nickel could only be found if it had the authority to supervise or control the means and methods of plaintiff’s work, which TG Nickel established that it did not.

Accordingly, although applying a different standard, the Appellate Division affirmed the lower court’s dismissal of the common law negligence and Labor Law violation allegations against TG Nickel.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at .

We previously reported on the appellate decision of Nazario v. 222 Broadway, LLC, in which the First Department held, over a strong dissent from Justice Tom, that a plaintiff who falls from an A-frame latter after receiving an electric shock from a light fixture he was removing had established a prima facie case that his ladder provided him with inadequate protection. The First Department reasoned that because the ladder was not secured so as to prevent it from falling over if plaintiff was shocked while working, the unsecured ladder was a violation of the Labor Law and the proximate cause of plaintiff’s injuries. Justice Tom, by contrast, believed that the First Department was straying too far from established Court of Appeals precedent and their sister Departments, all of whom have held that falling from an A-frame ladder after receiving an electric shock, by itself, is insufficient to establish liability as a matter of law.

In Nazario v. 222 Broadway, LLC, the Court of Appeals adopted Justice Tom’s dissent without saying so in so many words. The Court determined that questions of fact existed as to whether the A-frame ladder in question failed to provide plaintiff with the necessary protection, and whether plaintiff should have been given additional or alternative safety devices. The Court cited to its earlier decision in Blake v. Neighborhood Hous. Servs. Of N.Y. City for further guidance. Sharp-eyed readers will note that Justice Tom had warned his fellow panel members that their decision had departed too far from the Court’s Blake decision, and that the appellate court needed additional evidence concerning whether the ladder was defective or whether additional safety devices were necessary before granting summary judgment to plaintiff.

While we await a new decision from the First Department concerning whether additional safety measures were necessary or would have prevented plaintiff’s injury, the Court of Appeals has clearly signaled that it does not believe that falling from a ladder after receiving an electric shock, alone, establishes a Labor Law § 240(1) claim.

Thanks to Peter Luccarelli for his contribution.

For more information, contact Denise Fontana Ricci at .

A recent Wall Street Journal Article details the Manhattan District Attorney’s push to bring criminal charges against contractors who have sacrificed worker safety for profits.  The recent Manhattan construction boom has, according to Manhattan District Attorney Cyrus Vance Jr., created incentives for builders to cut corners.  According to the New York Department of Buildings there were 92 million square feet of new construction in 2015, up from 19 million in 2011.  During that same period, accidents more than tripled, and there has been five construction-related deaths so far this year, compared with twelve last year, and eight in 2014.

The article notes the recent manslaughter conviction of general-contracting firm Harco Construction, LLC for the death of Carlos Moncayo, a worker who was a worked killed in a 2015 trench collapse at a Meatpacking District construction site.  The matter is under appeal and the attorney for Harco believes it will be overturned.  Past attempts to bring manslaughter charges in construction accidents have been largely unsuccessful.

The construction industry has to battle a negative public perception regarding worker safety.  However, construction involves inherently dangerous work.  The article noted that the nature of the industry itself often makes it difficult to determine who, if anyone, is at fault.  The intertwined responsibilities of companies, contractors, subcontractors and workers further complicate this determination.

Despite the recent Harco conviction, the impact of the District Attorney’s office’s push for criminal charges remains to be seen.  Given the dangerous nature of construction, accidents are an unfortunate but natural consequence.  Those incidents and resulting litigation have largely remained in the civil, not criminal, realm.  Prosecutor Diana Florence, whose recent efforts were discussed in the article, is pursuing more construction cases, but carefully choosing them.  Despite this caution, these efforts symbolize a changing dynamic with important consequences for the construction industry.  The District Attorney’s Office efforts, however well-intentioned, could set a dangerous precedent and must be limited to only those cases where the evidence, not the tragedy, demands it.   Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

New York’s Labor Law §240 imposes strict liability as to property owners with respect to elevation related injuries. In Jerdonek v 41 W_ 72 LLC, the First Department grappled with how to define an owner of the common elements in a condominium building.

In Jerdonek, the plaintiff was injured in a fall from a scaffold while working in the boiler room of a residential apartment building on the Upper West Side of Manhattan.  Plaintiff fell from an improperly constructed scaffold and the evidence on the record demonstrated that plaintiff was not provided with proper safety equipment.  The appellate panel agreed that the plaintiff was entitled to summary judgment under Labor Law §240, and the appellate court majority ruled that liability applied to the condominium’s Board of Managers.

The issue was whether the plaintiff could also maintain a Labor Law claim against the development sponsor who retained ownership interest in some units in the building at the time of the injury when control of the building’s common elements had passed to the Board of Managers some six years prior. In determining that plaintiff’s valid labor law claims should not stand against the condominium’s sponsor or the individual unit owners, the majority opinion held that the conversion of the building to a condominium placed its common elements “solely under the control of the [condominium’s] board of managers” pursuant to the Condominium Act, which “recogni[zes] that the board exercises exclusive control over the common elements.” Under these circumstances, the First Department granted summary judgment in favor of the sponsor, 41 West 72 LLC and dismissed the claims under Labor Law §§ 240(1) and 241(6) as against it.

At the same time, because the record established that the board of managers was the proper party to be sued as owner of the building’s common elements, the court went one step further and granted plaintiff summary judgment as to liability on his claim under § 240(1) as against the board upon a search of the record.  The court felt that the decision was sound despite the fact that 41 West 72 LLC had retained ownership of some units in the building since its conversion to a condominium.

Each unit owner — including the sponsor of the condominium conversion— owns an undivided fractional interest in the real property comprising the condominium’s common elements. However, a unit owner’s ownership interest in the condominium’s common elements does not give rise to liability, whether for common-law negligence or under the Labor Law, because the condominium declaration transfers complete and exclusive control of the common elements to the Board of Managers. In essence, the unit owners, though they collectively own the common elements, are divested of the powers and responsibilities of ownership with respect to those elements.

The majority reasoned that barring the claim against the sponsor also protects and maintains the expectations of the individual unit owners of condominiums.  “If the sponsor of condominium conversion could be sued on a post-conversion cause of action arising from the common elements based on the sponsor’s continued ownership of unsold units, it would follow that each individual unit owner could be sued on exactly the same ground.”

Even if the sponsor, at the time the claim arose, continued to own a sufficient number of units to enable it to control the condominium’s Board of Managers, the majority’s analysis would not change.  According to the opinion, which relied on a previous decision of the same court, plaintiff cannot sue all of the individual unit owners on the ground that the owners collectively control the board of managers, absent a showing that the condo lacked a functioning and adequately capitalized Board of Managers at the time of plaintiff’s accident.

Ultimately, the majority found that the board is the proper owner for labor law purposes on a claim arising from an accident in an area that was under the exclusive control of the board of managers, despite the fact that the only deed recorded evinces the condo’s sponsor as the only titled owner of the building.  In dismissing the statutory claims against the titled owner, the majority claimed that the dissent’s argument was “sharply at odds with the expectations of buyers of condominium units, who are led to believe that risks and liabilities arising from the common elements will be handled on their behalf by the board of managers.”

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at .

New York’s Labor Law 240 and 241place responsibility on construction companies, contractors and property owners for the safety of workers working at a height.  There is an exemption for homeowners of one or two family homes.  In Del Carnen Diaz v Bocheciamp,  the First Department looked at the discreet issue of what constitutes a one or two family home and applied a “site and purpose test” in their analysis.

The plaintiff’s decedent-fell to his death while working on the defendant homeowner’s roof.  In a post-trial motion, the defendant-homeowner sought to dismiss the plaintiff’s claims under the exemption, but the lower court denied the motion.  At issue was the plaintiff’s contention that the home was used to house three families:  the homeowners, their adult child with two children, and a family friend.

The First Department held that, when applying the homeowner exemption, a court must apply the “site and purpose” test, which looks at the homeowner’s intention at the time of the accident and the purpose of the work.  In this matter, the plaintiff tried to argue that the home was a three-family dwelling because the basement was rented out to a tenant and the homeowners’ daughter and grandchildren were living on the top floor.  However, the court found that there was uncontradicted evidence that the homeowners did not collect rent from their daughter/grandchildren and that the top floor was not a true apartment, as it only contained two bedrooms.  Accordingly, the Appellate Division found that the two-family homeowner exemption applied.

Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at .