winter 2013 labor law update

Labor Law UpdateGoldberg Segalla | Winter 2013

In thIs Issue:the courts continue to grapple with the sole proximate cause defense, pg. 1

Cases from across new York’s court system involving:- special employment relationships - exclusivity of the workers’ compensation remedy - Contractual and common law indemnification - And more

Goldberg Segalla Labor Law Update

edItorThomas F. Segalla

AssIstAnt edItorRobert E. Gallagher, Jr.

Goldberg Segalla’s Labor Law Up-date keeps clients informed about significant changes and cases involv-ing New York’s Labor Law. Cases are organized by court and date. If you have any questions about any cases reported in this Labor Law Update or questions concerning Labor Law §§200, 240(1), and 241(6) in general, please contact;

Tom [email protected].

In this issue

Editor’s Note 1

Court of Appeals 1

First Department 2

Second Department 7

Third Department 13

Fourth Department 14

Federal Courts 16

Topics Index 17

our GenerAl lIAbIlItY teAm

Chairs

Partners

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Julie P. ApterDennis J. BradyKevin BurnsPaul S. DevineBrendan T. Fitzpatrick Christopher G. FlorealeDennis P. Glascott

William J. GreaganEllen H. GreiperDamon M. GruberMichael F. HarrisChristopher M. HartWilliam G. KellyDavid E. Leach

Matthew S. LernerPaul D. McCormickBrian W. McElhenny

Sean J. McKinleyPatrick B. NaylonClive O’Connell William T. O’Connell

Mark P. DonohueRobert E. Gallagher, Jr.James GilroyAngeline N. Iannou

Edward K. KittMichael J. LeeganKathleen J. MartinBrian E. Middlebrook

Rafael OteroTheodore W. UcinskiS. Philip Unwin

Troy A. BatailleChristina M. BresciaMeghan M. BrownMatthew D. CabralCory A. DeCresenzaLisa M. Diaz-OrdazScott P. Eisenberg

Troy S. FlascherMartin Galvin IIIArlow M. LintonGary A. Marshall, Jr.Laura Ashley MartinLila M. McKinleyBrian E. Middlebrook

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Labor Law Update | Winter 2013 • 1

Tom SegallaPartner

Editor’s Note

The courts continue to “refine” Runner v. New York Stock Exchange, Inc., 13 N.Y.3d 599, 922 N.E.3d 865, 895, N.Y.S.2d 279, 281 (N.Y. 2009) in the context of whether the risks associated with a plaintiff’s claim arise from a construction work site elevation differential. A review of the case from various jurisdictions indicates that the courts, in assessing whether a sufficient elevation differential is involved, focus on the height involved and the weight of any object. During this six month review period, the courts continue to grapple with the sole proximate cause defense and the implications of the individual choices made by the injured worker in performing the assigned tasks.

Several of the critical areas addressed by the courts in the context of risk shifting between defendants involved special employment relationships, the exclusivity of the workers’ compensation remedy and contractual and common law indemnification. From both a claims adjustment standpoint and litigation perspective, it is important that a detailed chronology of the facts surrounding the accident; the relationship of the parties; the contractual documents implicated; and the actions and inactions of the injured workers, the property owner, the general contractions, the subcontractors, and the injured worker’s employer are fully analyzed.

Court of AppeAls

Aleksey Guryev v. GreGory Tomchinsky2012 N.Y. LEXIS 3601 (CA Dec. 11, 2012)

In this 4-2 decision, the court distinguished the applicability of Labor Law §§240(1) and 241(6) to cooperative owners and condominium owners holding that condominium owners were not entities which had an interest in the property that fulfilled the role of an owner by contracting to have work performed for their benefit. Therefore, they were not liable under Labor Law §240(1) and 241(6).

Practice Note: The court noted that, while some superficial aspects of condominium and cooperative ownership are similar, the two forms of interest in real property are fundamentally different by design and as a matter of law. Topics: Authority or Control Over Work; Actual Supervision; General Supervisory Authority

2 • Labor Law Update | Winter 2013

fIrst depArtment

WilliAm hArTneTT v. chAnel, inc.97 A.D.3d 416, 948 N.Y.S.2d 282(1st Dept. 2012) (July 10, 2012)

The court, in a 5-1 decision, considered a situation involving the plaintiff, an electrician, who was injured while attempting to run electrical wire for a fire alarm system. As the plaintiff was attempting to open a 146-pound panel, it sprung loose from the box on which it was mounted and fell on him. While it appears that the plaintiff may have alleged violations of Labor Law §§200, 240(1), and 241(6), this decision only addressed and dismissed the plaintiff’s negligence and products liability claims against the manufacturer of the panel. In a lengthy dissent, the judge noted that “[i]n cases like this, summary judgment is to be awarded only where there are no interpretation of the facts advanced by the plaintiff that could lead a rational trier of fact to return a verdict in his favor.” The dissent found issues of fact.

Practice Note: This case provides an interesting analysis of the liability of a manufacturer in a work- related injury case.

Topics: Protected Activity; Application of Labor Law

John BurTon v. cW equiTies, llc97 A.D.3d 462, 950 N.Y.S.2d (1st Dept. 2012) (July 17, 2012)

Plaintiff was injured when he fell from a permanent concrete walkway. The court held that the plaintiff’s injuries were the direct consequences of a failure to provide adequate protection against a risk arising from a “significant elevation differential.” The walkway

had no guard rails or other barriers. The court refused to grant defendants motion to dismiss the §200 and common law claims because plaintiff’s injuries were a result of the dangerous condition of the work place and not a method used to perform the work.

Practice Note: When the injuries are a result of a dangerous worksite condition, there can also be issue on actual or constructive notice.

Topics: Elevation Related Hazard; Dangerous Conditions; Manner and Methods; Failure to Provide Protection

PAsquAle A. PicAro v. neW york convenTion cenTer DeveloPmenT corP.97 A.D.3d 511, 949 N.Y.S.2d 374(1st Dept. 2012) (July 31, 2012)

Plaintiff, a house electrician, was engaged in routine maintenance when he fell from a ladder affixed to a scissor lift after fixing a light fixture. In dismissing the plaintiff’s §240(1) claim the court noted “replacing components that require replacement in the course of normal wear and tear” is not a protected activity.

Practice Note: Not all falls from a height are protected under Labor Law §240(1).

Topics: Routine Maintenance; Protected Activity

cAloGero cAnDelA v. neW york ciTy school consTrucTion AuThoriTy97 A.D.3d 507, 950 N.Y.S.2d 123 (1st Dept. 2012) (July 31, 2012)

Plaintiff was injured when a 70-pound window sash crashed down on his

back while he was leaning through the window performing his work. The court set aside the jury verdict holding that the jury had no reasonable basis for rejecting evidence that raised an issue of fact on constructive and actual notice under Labor Law §200, which is a necessary element.

Practice Note: The court also noted that the jury was not asked on the jury verdict sheet whether the injured plaintiff satisfied the various elements of a claim under §200.

Topics: Actual or Constructive Notice of Dangerous Conditions; Dangerous Conditions

John cAPPABiAncA v. skAnskA usA BuilDinG inc.99 A.D.3d 139, 950 N.YS.2d 35(1st Dept. 2012) (Aug. 14, 2012)

Plaintiff was injured when his foot became stuck, causing him to fall off the pallet on which he was standing while cutting bricks with an electrical saw at a construction site. In a 5-2 decision, the majority of the court held as follows:

1. Dismissed the §200 claim because the defendants did not exercise supervisory control over the plaintiff’s work.

2. Dismissed the §240(1) claim because the plaintiff was almost 12” above the floor and was not exposed to an elevation-related risk requiring protective safety devices.

3. Reinstated the §241(6) claims, but held that there were issues of fact as to whether various Industrial Codes were violated and, if so,


whether the violation caused the injuries.

Practice Note: It appears that the court considered an issue of first impression — an accident caused by a dangerous condition created by the manner and method of work.

Topics: Dangerous Conditions; Elevation Related Hazard; Authority or Control Over Work; Actual Supervision; Industrial Code Regulations

6685 FreDy loPez v. rAFAel DAGAn98 A.D.3d 436, 949 N.Y.S.2d 671 (1st Dept. 2012) (Aug. 21, 2012)

Plaintiff was injured when the temporary floor on which he was working collapsed. The court, in this 5-1 decision, dismissed the §§240(1) and 241(6) causes of action based upon the one- and two-family dwelling exemption. The fact that the homeowner visited the worksite regularly and hired contractors were not sufficient to establish that the defendant directed or controlled the work. As to the defendant engineer, the court dismissed the claim under the engineer exemption because the engineer did not direct or control the work. The court also dismissed the plaintiff’s §200 and common law negligence claims which were based on the means and methods employed to do the work because the defendant had no supervisory control over the operations.

Practice Note: In a lengthy opinion, the dissent would not have dismissed the §200 and common law claims noting that there was an issue of fact on constructive notice. Further, the dissent discussed the relationship between

a manners and methods claim and a dangerous conditions claim.

Topics: One- or Two- Family Dwelling Exemption; Authority or Control Over Work; Actual Supervision; Exemption from Liability; Manner and Methods; Dangerous Conditions

PhiliP cAPuAno v. TishmAn consTrucTion corP.98 A.D.3d 848, 950 N.Y.S.2d 517 (1st Dept. 2012) (Sept. 11, 2012)

Plaintiff injured his back when he slipped on a piece of sprinkler pipe while installing heavy-duty sheetrock. In this 3-2 decision, the majority granted the plaintiff’s motion for summary judgment under §241(6) noting that the plaintiff relied on concrete specification of 12 N.Y.C.R.R. Part 23 and defendants failed to raise an issue of fact.

Practice Note: Two concurring judges clarified the burden of proof relative to an affirmative defense and noted that the defendant has that burden once the plaintiff established a prima facie claim.

Topics: Causation; Degree of Fault; Prima Facie Burden

GlenForD morris v. PAvArini consTrucTion98 A.D.3d 841, 950 N.Y.S.2d 370 (1st Dept. 2012) (Sept. 4, 2012)

Plaintiff injured his hand when a back wall of a concrete form fell on him. In a 4-1 decision, the majority of the court refused to dismiss the §241(6) claim because plaintiff’s injury related to the stability of a structure within the meaning of the Industrial Code. The dissenting judge was of the view that the Industrial Code did not apply to the facts of the case because it only

applied to completed forms that fall not where only one wall of the forms fell.

Practice Note: In reaching their opinions, both the majority and dissent discussed their interpretation of the expert testimony offered.

Topics: Application of Force or Gravity to an Object or Person; Defective or Inadequate Safety Equipment; Expert Retention

richArD FABrizi v. 1095 Avenues oF The AmericAs98 A.D.3d 864, 951 N.Y.S.2d 480 (1st Dept. 2012) (Sept. 18, 2012)

Plaintiff was injured when a piece of conduit fell. The court held that the plaintiff had a viable §240(1) claim because “falling object” liability under the statute is not limited to cases where the falling object is in the process of being hoisted or secured. The court also found there were issues of fact to preclude summary judgment. (Narducci, 96 N.Y.2d 259, 268 and Quattrocchi, 11 N.Y.3d 753, 758). The dissenting judge challenged the majority’s analysis of Narducci.

Practice Note: One concurring judge wrote to address foreseeability as an element of all Labor Law §240(1) cases. The issue is: “... an accident falls within the ambit of Labor Law §240(1) only if it is reasonably foreseeable that in performing the task giving rise to the accident, a worker will be exposed to a gravity-related hazard so that he/she should be provided, at the onset, with safety devices adequate to prevent the accident.”

Topics: Falling Objects; Application of Labor Law; Foreseeable Risk of Injury; Elevation Related Hazards


fIrst depArtment (Continued)

sTeve DWyer v. cenTrAl PArk sTuDios, inc.98 A.D.3d 882, 951 N.Y.S.2d 16 (1st Dept. 2012) (Sept. 18, 2012)

At the time of his injury, the plaintiff was standing on a ladder that collapsed while he was installing a large piece of sheetrock. Plaintiff fell to the floor and the sheetrock fell on him. The court granted the plaintiff’s motion under §240(1) and held that the plaintiff made a prima facie case by establishing that he fell from an unsecured ladder that collapsed. In reaching its decision, the court rejected the defendant’s sole proximate cause defense. Specifically, the court noted that there was no proof that the plaintiff was expected or instructed to use other ladders and for no good reason chose not to do so.

Practice Note: Also at issue on this appeal was the application of common law and contractual indemnification provision under GOL §5-322.1.

Topics: Failure to Provide Protection; Sole Proximate Cause; Falling Objects; Contractual Indemnification; Unsecured Ladder

osvAlDo menDozA v. velAsTATe corP.99 A.D.3d 401, 951 N.Y.S.2d 513 (1st Dept. 2012) (Oct. 2, 2012)

The court found that there were issues of fact to preclude summary judgment in favor of the plaintiff under §240(1). There were “... conflicting accounts of whether the plaintiff freely chose the equipment he was using for his work when he was injured, used equipment with his manager’s knowledge and tacit approval, or was directed to use the equipment by his manager.”

Practice Note: The entitlement of immunity under the Workers’ Compensation Law was also at issue.

Topics: Sole Proximate Cause; Failure to Provide Protection; Actual Supervision; Workers’ Compensation

8297 July FernAnDez v. sTockBriDGe homes, llc99 A.D.3d 550, 952 N.Y.S.2d 522 (1st Dept. 2012) (Oct. 16, 2012)

The court refused to grant summary judgment to the plaintiff under §240(1) because there were issues of fact as to how the accident happened and whether safety devices were provided to the plaintiff that he elected not to use. As to the defendants, the court found issues of fact as to whether one defendant was entitled to contractual indemnification under the contract which provided that indemnification was triggered from the “negligent acts or omissions.”

Practice Note: Not all contractual indemnification provisions require proof of negligence.

Topics: Sole Proximate Cause; Failure to Provide Protection; Recalcitrant Worker; Contractual Indemnification; Causation

Dennis AlArcon v. ucAn WhiTe PlAins housinG DeveloPmenT FunD corP.2012 N.Y. App. Div. LEXIS 7361 (Nov. 8, 2012)

Just prior to his accident, the plaintiff was instructed by his supervisor to permanently leave the construction site. As he was leaving, the plaintiff contends that he fell from a stair case that did not have railings. The

court granted plaintiff’s motion under §240(1). Also, at issue on this appeal was whether the indemnification provisions violated GOL §5-322.1.

Practice Note: On motions for summary judgment, affidavits of employees or principals with knowledge operative facts are important.

Topics: Actual Supervision; Foreseeable Risk of Injury; Industrial Code Regulations; Contractual Indemnification

Jose G. lizAmA v. 1801 universiTy AssociATes, llc2012 N.Y. App. Div. LEXIS 7691(Nov. 15, 2012)

Plaintiff was injured when the ladder on which he was working suddenly shifted, a crack was heard and the ladder collapsed, causing plaintiff to fall. The court granted plaintiff summary judgment under §240(1) and noted:

• Ladder was the lone piece of safety equipment.

• No definitive instructions were given.

• Ladder was inadequate.

• No other safety device was available.

• Plaintiff did not fail to heed instructions.

• Plaintiff’s injuries were not unrelated to the ladder shifting and collapsing.

Practice Note: The court rejected the sole proximate cause defense based on the foregoing factors.


Topics: Failure to Provide Protection; Defective or Inadequate Safety Equipment; Actual Supervision; Sole Proximate Cause

John mescAll v. sTrucTure-Tone, inc.2012 N.Y. App. Div. LEXIS 7682 (Nov. 15, 2012)

Plaintiff was injured when he was struck by a steel screen that fell 20’ while the screen was being lifted by a crane. Court granted plaintiff’s summary judgment motion under §240(1) and a jury awarded various damages. The court held that the jury’s verdict did not deviate materially from reasonable compensation.

Practice Note: Plaintiff also failed to preserve his claim that the jury verdict was inconsistent.

Topics: Elevation Related Hazard; Causation; Falling Objects; Procedural Issues

TerrAnce noBle v. 260-261 mADison Avenue, llc2012 N.Y. App. Div. LEXIS 7851(Nov. 20, 2012)

The defendant raised the following evidence that was sufficient to create triable issues of fact to defeat plaintiff’s motion under §240(1):

• Ladder was an adequate safety device.

• Whether another worker was needed to hold a stable ladder

• Whether the ladder needed to be secured.

• Whether plaintiff’s actions were the sole proximate cause.

Practice Note: Defendants raised factual issues as to whether the accident occurred in the manner in which the plaintiff claimed and whether it was the sole cause.

Topics: Failure to Provide Protection; Defective or Inadequate Safety Equipment; Sole Proximate Cause; Unsecured Ladder

chArles rAFFA, Jr. v. The ciTy oF neW york2012 N.Y. App. Div. LEXIS 8022 (Nov. 27, 2012)

Plaintiff was injured when he slipped while going from his car to a trailer. Previous to the day of his injury, the plaintiff had logged multiple complaints to his foreman and superintendents about snow and ice. The court held that there were issues of fact as to whether the defendant had actual or constructive notice. The court dismissed the §241(6) cause of action because the Industrial Codes were not applicable because the area was not a passageway under 12 N.Y.C.R.R. 23-1.7(d) (slipping hazard) or a floor or platform under 12 N.Y.C.R.R. 23-1.7(e)(tripping hazard).

Practice Note: Different Industrial Codes support a slipping and tripping hazard under 12 N.Y.C.R.R. Part 23.

Topics: Actual or Constructive Notice of Dangerous Conditions; Industrial Code Regulations; Comparative Negligence; Routine Workplace Risk

DAniel lAnDers v. 1345 leAseholD llc2012 N.Y. App. Div. LEXIS 8081 (Nov. 29, 2012)

Plaintiff was injured on a renovation project when the door of a freight elevator fell on his head. At issue on this appeal was whether the plaintiff had a viable §241(6) claim under 12 N.Y.C.R.R. 23-1.8(c)(1) (danger of being struck by a falling object). The court dismissed the §241(6) cause of action because the worksite was free of falling object hazards.

Practice Note: An attorney’s assertion that hard hats should have been provided was insufficient to create an issue of fact. The use of an expert may have been more appropriate.

Topics: Elevation Related Hazard; Industrial Code Regulations; Falling Objects; Expert Retention; Procedural Issues

elADio GArciA v. DPA WAllAce Avenue i, llc2012 N.Y. App. Div. LEXIS 8201(Dec. 4, 2012)

Plaintiff, an elevator mechanic, injured his head when a thin strip of metal broke and snapped. The court held that §240(1) was inapplicable because an object was not being hoisted or a load that required securing. The object was part of the preexisting structure. The §200 and common law negligence claims were dismissed against the owner because it did not have the authority to control the activity bringing about the injury nor was there constructive notice of the condition.


fIrst depArtment (Continued)

Practice Note: The court rejected the opinion of the plaintiff’s expert because he did not examine the premises, but only relied on deposition testimony.

Topics: General Supervisory Authority; Application of Labor Law; Actual or Constructive Notice of Dangerous Conditions

celene BeTAncur v. lincoln cenTer For The PerForminG ArTs, inc.2012 N.Y. App. Div. LEXIS 8316(Dec. 6, 2012)

The ladder on which the plaintiff was standing inexplicably wobbled, causing her to fall and get injured. The court granted plaintiff’s summary judgment motion under §240(1), noting that there was not any evidence to reasonably infer that the actions of plaintiff were the sole proximate cause of her injuries. As to the relationship between the defendants, the court held that one of the defendants was not the “statutory agent” of the other and found that two of the defendants were entitled to common law and/or contractual indemnification.

Practice Note: The language used in the contract determines what triggers contractual indemnification.

Topics: Sole Proximate Cause; Statutory Agent; Contractual Indemnification; Defective or Inadequate Safety Equipment

Guillermo PicAso v. 345 eAsT 73 oWners corP.2012 N.Y. App. Div. LEXIS 8537(Dec. 13, 2012)

The court refused to dismiss the §200 and common law negligence cause

of action because the defendant failed to demonstrate that they lacked notice of the hazardous condition. The defendants conducted daily inspections and plaintiff noticed the defective condition two weeks before the incident; therefore, there were issues of fact.

Practice Note: Common law indemnification was not available because a grave injury was not alleged.

Topics: Dangerous Conditions; Actual or Constructive Notice of Dangerous Conditions; Common Law Indemnification

enrique sosA v. 46Th sTreeT DeveloPmenT llc2012 N.Y. App. Div. LEXIS 8522 (Dec. 13, 2012)

Plaintiff was injured when he sustained an electrical shock from an exposed, hanging electric wire. The court, in this 5-1 decision, denied a defendant’s motion for summary judgment which sought contractual indemnification. The specific issue was whether there was a triable issue of fact as to whether the defendant had notice of the dangerous condition and sufficient time to remedy it.

Practice Note: Not only must there be notice of the condition, but there must be sufficient time to remedy the condition.

Topics: Actual or Constructive Notice of Dangerous Conditions; Procedural Issues; Contractual Indemnification

kAimchAnD DooDnATh v. The morGAn conTrAcTinG corP.2012 N.Y. App. Div. LEXIS 8509 (Dec. 13, 2012)

Plaintiff, a truck driver, was injured while he was stacking planks and panels when he slipped on a wet, dirty plank. The court dismissed the §200 and common law negligence causes of action because there was no evidence that the defendants controlled the work or had timely notice.

Practice Note: The §241(6) claim was dismissed because the plaintiff did not slip on a work surface.

Topics: Application of Labor Law; Actual or Constructive Notice of Dangerous Conditions; Actual Supervision

AnThony Tuccillo v. Bovis lenD leAse, inc.2012 N.Y. App. Div. LEXIS 9034 (Dec. 27, 2012)

Plaintiff was injured when a ladder on which he was working wobbled, causing him to fall. At the time of his injuries, the plaintiff was pulling cables. At issue on this appeal was whether one of the defendants was the statutory agent of another defendant to establish liability under §240(1). The court held that there was sufficient evidence to establish “agency” on the issue of control.

Practice Note: In determining whether one entity is a statutory agent of another, the court assesses the contract and the activities onsite.

Topics: Statutory Agent; Defective or Inadequate Safety Equipment; Actual Supervision; General Supervisory Authority


PAvel Tomecek v. WesTchesTer ADDiTions & renovATions, inc.97 A.D.3d 737, 948 N.Y.S.2d 671 (2d Dept. 2012) (July 18, 2012)

Plaintiff was injured when he fell from a ladder while constructing an addition to a single-family residence. The court dismissed the §§240(1) and 241(6) cause of action and applied the exemption for owners of single and two-family houses. The homeowners did not supervise, direct or control the work being performed.

Practice Note: The court contrasted where a homeowner oversees the method and manner of the work with typical homeowner interest in the ongoing construction process.

Topics: One- or Two- Family Dwelling Exemption; Manner and Methods

seCond depArtment

BeniTo reyes v. PosT & BroADWAy, inc.97 A.D.3d 805, 949 N.Y.S.2d 141 (2d Dept. 2012) (July 25, 2012)

Plaintiff was injured when he fell from a scaffold while performing exterior stucco renovation work. The plaintiff settled his §§240(1) and 240(1) claims and the case went to a non-jury trial on the third-party action, which involved a contractual indemnification claim. The court determined that the defendant was entitled to contractual indemnification against the third-party defendant under a contract that provided that the third-party defendant “assumes all liabilities of the defendant.”

Practice Note: In assessing a contractual indemnification provision, the duty to indemnify must clearly be implied from the language and purpose of the entire agreement and the surrounding facts and circumstances.

Topics: Contractual Indemnification

kenny koAT v. consoliDATeD eDison oF neW york, inc.98 A.D.3d 474, 949 N.Y.S.2d 699 (2d Dept. 2012) (Aug. 1, 2012)

Plaintiff was injured when he fell while welding a portion of a turbine engine on a barge stationed in waters in Brooklyn. The court dismissed the §241(1) because the barge was a “vessel” within the meaning of


seCond depArtment (Continued)

the Longshore and Harbor Workers’ Compensation Act, which preempts state law. Further, the court dismissed the §200 and common law because the moving defendants established their prima facie entitlement to judgment, as a matter of law, by demonstrating that the subject accident was a “means and methods” case. Further, because the plaintiff’s employer directed and controlled the plaintiff’s work and not the defendants the defendants made a prima facie case.

Practice Note: The authority to exercise supervisory control over plaintiff’s work is critical in a means and methods case.

Topics: Longshore and Harbor Workers’ Compensation Act

BrunilDA loPez-Dones v. 601 WesT AssociATes, llc98 A.D.3d 476, 949 N.Y.S.2d 165 (2d Dept. 2012) (Aug. 1, 2012)

Plaintiff was instructed by her employer to perform electrical work on a pull box that was hanging from a ceiling. The plaintiff was not provided any safety device, nor was anyone assigned to help her. A dolly came in contact with the A-frame ladder the plaintiff was working on, which caused the ladder to tip. This caused the plaintiff to twist her body to get the ladder back in an upright position. Neither the ladder nor the plaintiff fell. The court granted the plaintiff’s motion for summary judgment §240(1) and noted that §240(1) “... may apply where a plaintiff is injured as a result of his or her attempt to prevent a fall from a ladder ....”

Practice Note: The court dismissed the contractual indemnification

claim under GOL §5-322.1 because there was no proof that the third-party defendants employees were negligent.

Topics: Failure to Provide Protection; Application of Labor Law; Contractual Indemnification

JosePh AnnicAro v. corPorATe suiTes, inc.98 A.D.3d 542, 949 N.Y.S.2d 717 (2d Dept. 2012) (Aug. 8, 2012)

Plaintiff’s job on the construction site was to clean up debris to make the site safer. At the time of his injury, he was sweeping a staircase and was stepping backwards. He stepped on a thread rod on the staircase, which caused him to lose his balance and fall down the staircase. The court dismissed the §200 and common law negligence cause of action and held that:

The common law duty to provide employees with a safe place to work does not extend to hazards that are part of, or inherent in, the very work the employee is to perform ....

Practice Note: The court dismissed the §241(6) claim because the plaintiff failed to establish violations of a specific and concrete provision of the Industrial Code.

Topics: Routine Workplace Risk; Industrial Code Regulations; Causation

cArey chAse v. Arnell consTrucTion corP.98 A.D.3d 553, 949 N.Y.S.2d 464 (2d Dept. 2012) (Aug. 8, 2012)

Plaintiff was injured when sheet metal decking on which he was walking collapsed. The court held that the plaintiff met the prima facie burden under §240(1) and rejected the defendant’s sole proximate cause defense.

Practice Note: If a violation of §240(1) is the proximate cause of the plaintiff’s injuries, a prima facie case is established and the burden shifts to the defendant.

Topics: Causation; Prima Facie Burden; Sole Proximate Cause

lincoln creese v. lonG islAnD liGhT. comPAny98 A.D.3d 708, 950 N.Y.S.2d 167 (2d Dept. 2012) (Aug. 29, 2012)

Plaintiff, a contractor, was injured as he was exiting a building retrieving work materials. The doorway, which the plaintiff was using as a passageway, was 3’ to 4’ higher than the ground below and there was a wooden plank between the doorway and ground. The court dismissed the §240(1) claim because the passageway was not one of the safety devices under the §240 and was not being used in performance of his work. The court refused to dismiss the plaintiff’s §241(6) cause of action because he demonstrated a violation of specific rules or regulations that were the proximate cause of plaintiff’s injuries.

Practice Note: Under a §200 and common law negligence claim,


supervisory control and authority over the worksite are critical issues.

Topics: Elevation Related Hazard; General Supervisory Authority; Comparative Negligence; Industrial Code Regulation

sAmuel mccoy v. ABiGAil kirsch AT TAPPAn hill, inc.99 A.D.3d 13, 951 N.Y.S.2d 32 (2d Dept. 2012) (Sept. 12, 2012)

Plaintiff, a truck driver, at the time of his injury was disassembling a wedding canopy (chupah). While a worker was holding a ladder on which the plaintiff was standing, the ladder slipped and the plaintiff fell to the ground. The court held that the chupah was a structure and therefore covered under §240(1).

Practice Note: Factors to consider in determining whether a structure is involved are: the item’s size, purpose, design, composition, and degree of complexity; the ease or difficulty of assembly and disassembly; the tools required to create it and dismantle it; the manner and degree of its interconnecting parts; and the amount of time the item is to exist. No one factor should be deemed controlling.

Topics: Defective or Inadequate Safety Equipment; Application of Labor Law; Protected Activity

oFeliA roDriGuez v. D&s BuilDers, llc98 A.D.3d 957, 951 N.Y.S.2d 54 (2d Dept. 2012) (Sept. 12, 2012)

At the time of his death, the plaintiff was working on a flatbed truck at the same level of a bundle of forms that

struck the plaintiff. The court dismissed the §240(1) claim because the forms were not being hoisted or secured and the decedent was not exposed to an elevation differential. Plaintiff was on the same level as the forms. With respect to the §241(6) claim, because more of the Industrial Code regulation relied on were applicable to the facts of the case the claim was dismissed.

Practice Note: Not every “falling object” claim is protected under the Labor Law.

Topics: Elevation Related Hazard; Falling Objects; Industrial Code Regulations; Application of Labor Law; Protected Activity

JeFFrey Tesoro v. BFP 300 mADison ii, llc98 A.D.3d 1031, 950 N.Y.S.2d 779 (2d Dept. 2012) (Sept. 19, 2012)

Plaintiff twisted his left knee while he and co-workers were pushing an A-frame cart loaded with sheetrock up a ground level loading dock ramp. He stated he injured himself “just pushing the frame” and there was nothing wrong with the ramp. The court dismissed the §241(6) claim because the Industrial Codes relied upon were not applicable.

Practice Note: 12 N.Y.C.R.R. §23-1.7(f) was not applicable because the accident occurred on a permanent concrete ramp that was part of the building.

Topics: Permanent Fixture or Structure; Industrial Code Regulations; Comparative Negligence

mArcus mcleAn v. 405 WeBsTer Avenue AssociATes98 A.D.3d 1090, 951 N.Y.S. 185 (2d Dept. 2012) (Sept. 26, 2012)

Plaintiff was installing microduct, which is housing for fiber optic cable. As he was standing on a dumbwaiter cart in a shaft, a counterweight for the dumbwaiter hit him and he was injured. The court dismissed the §240(1), noting that the plaintiff was not required to work at an elevation and that the object struck the plaintiff was not a falling object protected under the Labor Law (hoisted or secured). The court refused to dismiss the §241(6) claim because there were issues of fact as to whether a hard hat was needed. There also were issues of fact as to the §200 and common law negligence claims on duty to inspect the premises, constructive notice, and supervisory control.

Practice Note: In dismissing the plaintiff’s failing object claim the court noted that “[w]here a falling object is not a foreseeable risk inherent in the work, no protective device pursuant to Labor Law §240(1) is required ....”

Topics: Falling Objects; Elevation Related Hazard; Comparative Negligence; Actual or Constructive Notice of Dangerous Conditions; General Supervisory Authority

Johnny menDez v. JAckson DeveloPmenT GrouP, lTD.99 A.D.3d 677, 951 N.Y.S.2d 736 (2d Dept. 2012) (Oct. 3, 2012)

At the time of his inquiry, the plaintiff and a coworker were installing plate glass window panes. Plaintiff was on a ladder and the coworker was on the ground. As they were installing a pane,



the pane split in half and pieces struck the plaintiff injuring him. In noting that “not every object that falls on a worker gives rise to the extraordinary protection of Labor Law §240(1),” the court dismissed the §240(1) because there was an “absence of a causal nexus between the worker’s injury and a lack or failure of a device prescribed under section 240(1) ....” The court dismissed the §241(6) claim because the Industrial Code was either not applicable or not violated.

Practice Note: The court, in discussing the §200 and common law negligence claim, noted the difference between a manner and means case and a dangerous condition on the premises case.

Topics: Manner and Methods; Unsecured Ladder; Dangerous Conditions; Falling Objects; Causation

reuBen AllAn v. Dhl exPress (usA), incl.99 A.D.3d 828, 952 N.Y.S.2d 275(2d Dept. 2010) (Oct. 17, 2012)

Plaintiff alleged that he was injured when he fell from the top of a scaffold which was 7’ or 8’ high and that he was not provided with a harness, lanyard, or an anchor point for the lanyard. There was contrary evidence that plaintiff fell while he was climbing down the side of the scaffold instead of using a ladder. The court dismissed the §§240(1) and 241(6) cause of action because one of the defendants was not an owner (i.e., authority to control the worksite) under those sections. Also, the §200 and common law claims were dismissed because the defendant did not have authority to supervise or control the manner in which the plaintiff’s employer performed the work. With respect to

another defendant, the court held there were issues of fact as to whether the plaintiff’s own actions were the sole proximate cause of the accident.

Practice Note: This case is an example of where key deposition testimony can be utilized by a defendant to create issues of fact.

Topics: General Supervisory Authority; Sole Proximate Cause; Failure to Provide Protection; Procedural Issues

roDolFo cAnAs v. hArBour AT Blue PoinT home oWners AssociATion, inc.99 A.D.3d 962, 953 N.Y.S.2d 150 (2d Dept. 2012) (Oct. 24, 2012)

Plaintiff was injured when an unsecured ladder slipped from beneath him and he fell to the ground. He was painting the exterior of a condominium building. The ladder was not secured nor was any assistance provided to hold the ladder. The court granted the plaintiff’s summary judgment under §240(1) because the defendants failed to raise issues of fact as to how the accident happened.

Practice Note: The decision provides a clear and succinct reference to Labor Law §240(1) standards.

Topics: Unsecured Ladder; Application of Labor Law

hArolD m. GonzAlez v. WooDBourne ArBoreTum2012 N.Y. App. Div. LEXIS 7599 (Nov. 4, 2012)

Plaintiff was killed when a “water cannon” which was 10 to 12 feet high and weighed a ton, had been moved into a garage and fell on him. The court dismissed the §§240(1) and 241(6) causes of action and held:

While the ... section 240(1) is not limited to work

performed on actual construction sites ... the task in which an injured employee was engaged must have been performed during the erection, demolition, repairing, altering, painting, cleaning, or painting of a building or structure.

The court held that the plaintiff was engaged in “routine maintenance” (i.e., replacement of a worn-out component).

Practice Note: The court provided a lengthy analysis of the “special employee/employer doctrine” and in this case refused to extend the exclusivity provisions of the Workers’ Compensation Law.

Topics: Application of Labor Law; Routine Maintenance; Special Employee; Workers’ Compensation


ismAel nunez v. ciTy oF neW york2012 N.Y. App. Div. LEXIS 7617 (Nov. 14, 2012)

Plaintiff was injured when he fell from a ladder while working on an asbestos-removal project. The court noted that the plaintiff failed to eliminate triable issues of fact as to whether the ladder provided proper protection and whether the ladder’s failure to provide proper protection was a proximate cause of his injuries. There was conflicting evidence whether the A-frame ladder was in an open and locked position or whether it was open and propped up against the wall at the time the plaintiff fell. The plaintiff’s own proof created the issues of fact.

Practice Note: Not all falls from ladders are protected under §240(1).

Topics: Application of Labor Law; Protected Activity; Application of Force or Gravity to an Object or Person

ernesTo GArciA-rosAles v. BAis rochel resorT2012 N.Y. App. Div. LEXIS 7583 (Nov. 14, 2012)

Without reciting the facts of the case, the court held that there were issues of fact to preclude summary judgment. Of interest, the court noted that the correction sheet attached to the plaintiff’s deposition and his own affidavit created issues of fact.

Practice Note: Contradictory facts can be found in pleadings, medical records, and work-related documents.

Topics: Procedural Issues

AnThony PArker v. 205-209 eAsT 57Th sTreeT AssociATes, llc2012 N.Y. App. Div. LEXIS 7214 (Nov. 7, 2012)

Plaintiff was injured when he fell after stepping through a doorway that was several feet above the level of the lower roof on a building. Previous to the date of the accident, a grate had been placed in the area. The court dismissed the §241(6) claim because the height differential did not constitute a hazardous opening under 12 N.C.R.R. §23-1.7(b)(1).

Practice Note: Even though the defendant had not appealed various trial court rulings, the court on its own motion granted various relief.

Topics: Significant Elevation Differential; Comparative Negligence; Procedural Issues; Industrial Code Regulations



JosePh veTrAno v. J. kokolAkis conTrAcTinG, inc.2012 N.Y. App. Div. LEXIS 8061 (Nov. 28, 2012)

Plaintiff, an iron worker, was injured when he fell 12 to 13 feet from a steel beam. The court held that plaintiff established a prima facie through the use of the following evidence:

• Deposition testimony

• Affidavit of coworker with knowledge of the facts

• Use of an attorney’s affidavit is not fatal

• Unsigned by certified deposition transcript

Practice Note: Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to raise triable issues of fact.

Topics: Prima Facie Burden; Failure to Provide Protection; Application of Force or Gravity to an Object or Person

AnDreW zAsTenchik v. knollWooD counTy cluB2012 N.Y. App. Div. LEXIS 8464 (Dec. 12, 2012)

Plaintiff, a plumber, was injured when his foot got stuck in 10” of mud as he was retrieving pipes to be installed on a construction site. The court dismissed the §241(6) claim because the plaintiff did not slip or trip and therefore, the Industrial Codes relied upon were not applicable. The court refused to dismiss the §200 and common law claim because the defendant failed to establish that the defect (mud) that

caused the injury did not constitute a dangerous condition.

Practice Note: The court refused to grant contractual indemnification against the third-party defendant where there were issues of fact as to whether “negligence” occurred.

Topics: Dangerous Conditions; Industrial Code Regulations; Comparative Negligence

mArk Forssell v. rAnDy lerner2012 N.Y. App. Div. LEXIS 8429 (Dec. 12, 2012)

Plaintiff, at the time of his injury, was using a table saw which because of an overload the saw skipped and came in contact with his hand. The court determined that the plaintiff’s §200 claim involved a “means and methods” situation and there were issues of fact as to whether the defendant had authority to supervise and control the performance of the plaintiff’s work.

Practice Note: The case also involved a claim by the plaintiff against the manufacturer of the saw, which provides an interesting analysis within the context of a Labor Law claim.

Topics: Industrial Code Regulations; Manner and Methods; General Supervisory Authority; Unforeseeable Intervening Act Defense

ciro h. AlFonso v. PAciFic clAsson reAlTy, llc2012 N.Y. App. Div. LEXIS 8411 (Dec. 12, 2012)

Plaintiff was injured when he was attempting to remove a heating unit from the ceiling of a leased premises.

The court dismissed the claim against several of the defendants because it was not an owner within the purview. With respect to another one of the defendants, the court held that there were issues of fact as to whether the defendant was an owner or agent of the owner.

Practice Note: There is an excellent discussion of the special employment doctrine and exclusivity of the Workers’ Compensation Law.

Topics: Property Owner; Statutory Agent; Special Employee

michAel GAmBAle v. 400 FiFTh reAlTy, llc2012 N.Y. App. Div. LEXIS 8607 (Dec. 19, 2012)

Plaintiffs, ironworkers, were working on the 42nd floor during the construction of a building and was injured when the floor (plywood decking) collapsed. The court granted the plaintiffs’ motion for summary judgment under §240(1) because they established a prima facie case and the defendants failed to raise triable issues of fact.

Practice Note: Once the plaintiff has met the burden of proof as to a prima facie case, it is incumbent upon defendant to raise issues of fact.

Topics: Prima Facie Burden; Unprotected Hole/ Hazardous Opening


DArBy J. oAkes v. WAl-mArT reAl esTATe Business TrusT99 A.D.3d 31, 948 N.Y.S.2d 748 (3d Dept. 2012) (July 19, 2012)

Plaintiff sustained a crush injury to his legs. At the time of his injury, he was walking at ground level between two vertical steel trusses (10,000 lbs.) when a forklift struck one of the trusses, which fell onto the plaintiff. The court rejected the plaintiff’s argument that he was entitled to summary judgment under §240(1), and noted:

Notwithstanding the substantial weight of the truss and the significant force generated as it fell due to the force of gravity,however, there was no elevation differential presenthere, let alone “a physicallysignificant elevation.”

Practice Note: In reaching its decision, the court discussed the implications of rocovich, ross, and runner.

Topics: Elevation Related Hazard; Significant Elevation Differential; Application of Labor Law

JAmes eDick v. GenerAl elecTric co.98 A.D.3d 1217, 951 N.Y.S.2d 251 (3d Dept. 2012) (Sept. 27, 2012)

Plaintiff was injured when he slipped on a patch of ice and fell on a construction site. At issue on this appeal was whether the plaintiff had a viable §200 claim. The court denied the defendant’s motion to dismiss the §200 claim and in doing so noted that this is a “dangerous premises” case and not a “means and methods” case where supervision and

control of the work by a defendant is a factor. In a dangerous premises case, supervision and control of the plaintiff’s work is irrelevant. Notice and control of the place where the injury occurred are the relevant factors.

Practice Note: The court also considered and rejected the “storm in progress” rule.

Topics: Dangerous Conditions; Manner and Methods; General Supervisory Authority; Actual or Constructive Notice of Dangerous Conditions

ricky lAnDon v. DuAne AusTin2012 N.Y. App. Div. LEXIS 7882 (Nov. 21, 2012)

At the time of his injury, the plaintiff was doing roofing on a single-family residence when he fell from the roof. The plaintiff sued the homeowner and the homeowner’s construction business. The court refused to dismiss the §§240(1) and 241(6) claims because the record was not clear as to which hat the homeowner was wearing — owner or corporate/contractor.

Practice Note: The court noted that although the term “contractor” is not defined under §240(1), “an entity is a contractor within the meaning of [the statute] if it had the power to enforce safety standards and choose responsible subcontractors.”

Topics: One- or Two- Family Dwelling Exemption; Actual Supervision; Property Owner

JosePh WilliAms v. ToWn oF PiTTsToWn2012 N.Y. App. Div. LEXIS 7881 (Nov. 21, 2012)

Plaintiff was injured when a 6,000-lb. counterweight that he was reattaching to a machine he had repaired fell, crushing his foot. In determining that the plaintiff was entitled to summary judgment under §240(1), the court noted:

Despite plaintiff being responsible for deciding how to move the counterweight, defendant is not relieved of liability because plaintiff chose a method he had been taught and had safely used more than 10 times in the past ....

Practice Note: The court considered comparative fault and the recalcitrant worker defense in reaching its decision.

Topics: Comparative Fault; Sole Proximate Cause; Recalcitrant Worker

richArD J. GunDermAn v. sure connecT cABle insTAllATion, inc.2012 N.Y. App. Div. LEXIS 8372(Dec. 6, 2012)

Plaintiff, at the time of his injury, was installing cable from a ladder when the cable “whipped back,” causing the plaintiff to fall from a ladder. The court held that the granting of summary judgment to the plaintiff under §240(1) was premature. In reaching its decision, the court noted:

thIrd depArtment


thIrd dept. (Continued) fourth depArtment

Absent a more detailed description of the tasks required to complete the requested upgrade, we are unable to determine — on this records — whether the work ... constituted an alteration

within the meaning of Labor Law §240(1).

Practice Note: The court also provides an excellent discussion of the factors needed to establish contractual indemnification.

Topics: Alteration or Repair; Unsecured Ladder; Protected Activity; Contractual Indemnification

kenneTh h. rosier v. JosePh sToeckeler, sr.2012 N.Y. App. Div. LEXIS 8593(Dec. 13, 2012)

The plaintiff was replacing a garage door at a repair shop and was injured when he fell from a ladder into a pit in the garage. The court held that there were factual issues that precluded summary judgment. Specifically, there was a conflict between the plaintiff’s affidavit, which indicated the ladder shifted causing him to fall, and his deposition testimony that indicated he simply lost his balance and did not know what caused the accident.

Practice Note: The court also considered whether the insured had given notice to his insurer “as soon as practicable” and whether the insured provided notice to the proper entity.

Topics: Notice of Disclaimer; Causation; Unsecured Ladder

mosTAFA zolFAGhAri v. huGhes neTWork sysTems, llc99 A.D.3d 1234, 953 N.Y.S.2d 367 (4th Dept. 2012) (Oct. 5, 2012)

Plaintiff was injured when he fell from a ladder while trying to remove a satellite dish attached to the outside wall of a gas station. The dish was being removed because the ownership of the premises was changing. At issue on this appeal was whether the plaintiff was engaged in the alteration of building or structure within purview of §240(1). Altering is defined as “making a significant physical change to the configuration or composition of the building or structure.” (Joblon, 91 N.Y.2d 457). The court held that the plaintiff was not performing alteration. The §241(6) claim was dismissed because plaintiff was not performing construction, renovation, or demolition. Further, one of the defendants was not a third-party beneficiary under an indemnification provision.

Practice Note: The scope of the work being performed will determine whether the worker is performing a protected activity.

Topics: Alteration or Repair; Contractual Indemnification; Protected Activity


shAWn PAlmer v. counTy oF erie99 A.D.3d 1208, 951 N.Y.S.2d 437 (4th Dept. 2012)(Oct. 5, 2012)

This apparently came up within the context of the plaintiffs’ motion to renew. The court granted the motion noting that it was based on a “change in the law that would change the prior determination.” Therefore, the trial court should not have dismissed the plaintiff’s §240(1) claim.

Practice Note: The procedural status of a case is important, including the differences between a motion to reargue and review.

Topics: Procedural Issues

michAel JAmes olsen v. louis F. kozloWski953 N.Y.S.2d 521 (4th Dept. 2012) (Nov. 9, 2012)

The plaintiff was injured when he fell from the second floor of a residence under construction. The court held that there was a triable issue of fact as to whether the plaintiff could sue the defendant and noted:

[A] workers, such as the plaintiff, who is injured during the course of his employment, cannot maintain an action to recover damages for personal injuries against the owner of the premises where the accident occurred when the owner is also an officer of the corporation that employed the worker.

Practice Note: The exclusivity of Workers’ Compensation Law §29 will come into play if the owner is also an officer.

Topics: Property Owner; Workers’ Compensation

summer kin v. sTATe oF neW york2012 N.Y. App. Div. LEXIS 8799 (Dec. 21, 2012)

Plaintiff was injured when she fell from a ladder while working on a bridge reconstruction project. The ladder that was being used was the top half of an extension ladder that did not have rubber feet. The ladder slid out from beneath the plaintiff, causing her to fall. The court granted the plaintiff’s motion for summary judgment and rejected the defendants’ sole proximate cause defense. While there were ladders available onsite with rubber feet, the defendants failed to prove that the plaintiff knew where these ladders were or that proper instructions were given.

Practice Note: The application of the sole proximate cause defense is fact specific and the defendant has the burden of proof.

Topics: Sole Proximate Cause; Unsecured Ladder; Defective or Inadequate Safety Equipment

JosePh lunA v. zooloGicAl socieTy oF BuFFAlo, inc.2012 N.Y. App. Div. LEXIS 9157(Dec. 28, 2012)

Plaintiff, a carpenter on a construction project, was injured as a result of a fall from an elevated work surface and the failure of the defendant to provide a sufficient safety device. At issue on this

appeal was whether the plaintiff’s own conduct was the sole proximate cause of his injuries. In granting the plaintiff’s motion under §240(1) and rejecting the defendant’s sole proximate cause defense (recalcitrant worker), the court noted that the defendant’s burden is not met merely by providing safety instructions or by making other safety devices available.

Practice Note: The safety devices must be furnished, placed, and operated so as to give a worker proper protection.

Topics: Elevation Related Hazard; Sole Proximate Cause; Defective or Inadequate Safety Equipment

richArD Bruce v. AcTus lenD leAse2012 N.Y. App. Div. LEXIS 9121(Dec. 28, 2012)

Plaintiff was injured when a roof truss that he was securing broke apart, striking him. The truss broke apart because the hoist to which it was attached prematurely moved. The court refused to grant summary judgment, finding issues of fact with respect to the “falling worker” theory of recovery.

Practice Note: Of interest, the court held that this was not a “falling object” case because the truss was not being raised when it struck the plaintiff and the injury was not a result of the application of a force or gravity.

Topics: Falling Objects; Application of Force or Gravity to an Object or Person; Protected Activity

fourth depArtment


SOUThERN DISTRICT OF NEW YORk

AnTonio BAlBino De Jesus v. AkAm AssociATes2012 U.S. Dist. LEXIS 120853 (Aug. 23, 2012)

Plaintiff, a brick layer, was injured when he fell from a roof deck. At issue in this case was whether the plaintiff was wearing a safety harness and whether his employer advised him that there was no place to hook off. Plaintiff’s employer disputed the plaintiff’s position. The court denied plaintiff’s motion for summary judgment under §240(1) because he had not shown that the defendant or his employer failed to provide a safety device “constructed, placed and operated to give proper protection.” The court also considered the defendant’s motion for summary judgment under contractual indemnification and granted it under the circumstances.

Practice Note: In this decision the court outlines the proof necessary to establish contractual indemnification.

Topics: Recalcitrant Worker; Sole Proximate Cause; Contractual Indemnification; Defective or Inadequate Safety Equipment

TimoThy roBBins v. rye reAl esTATes AssociATes, llc2012 U.S. Dist. LEXIS 147529 (Oct. 11, 2012)

At the time of his injury, the plaintiff was cleaning gutters from an aluminum ladder on his employers’ car dealership. Plaintiff, in addition to being employed to prep cars for delivery, was also the “go to” person for various jobs. Plaintiff fell 16 to 17 feet to the ground. Based on these facts, plaintiff instituted an action against owner of the premises. At issue in this case was whether the owner was entitled to the workers’ compensation defense. The court held that there was not sufficient proof to establish that the defendant was the “alter ego of

federAl Courts

EASTERN DISTRICT OF NEW YORk

mArio loPez-oviDeo v. JoAn mArvin2012 U.S. Dist. LEXIS 139609 (Sept. 27, 2012)

Plaintiff was injured when a table saw he was using, which did not have a blade guard, kicked back and severed two fingers. The court found an issue of fact under §241(6) concerning the plaintiff’s comparative fault. In addition, the court found that one of the defendants was an owner, based upon his involvement in the construction and membership in a club. The court also considered various claims for contractual and common law indemnification.

Practice Note: The court dismissed the §200 and common law negligence claim because of the lack of any control, authority, or supervision over the day-to-day work of the construction crew.

Topics: Comparative Negligence; Contractual Indemnification; Grave Injury; Unforeseeable Intervening Act Defense; Property Owner


the plaintiff’s employer.” The court granted the plaintiff’s motion for summary judgment under §240(1), holding that the statue was violated and the violation was the proximate cause of the plaintiff’s injuries. In reaching its decision, the court considered and rejected the argument that plaintiff was performing routine maintenance. The cleaning of gutters on a commercial building, according to this court, is a protected activity.

Practice Note: The court compared cleaning gutters to cleaning windows in the commercial context (Dahar, 18 N.Y.3d 521; Broggy, 8 N.Y.3d 675).

Topics: Alteration or Repair; Workers’ Compensation; Protected Activity; Routine Maintenance

WESTERN DISTRICT OF NEW YORk

richArD sAxBy v. lPs FielD services, inc.2012 U.S. Dist. LEXIS 158458(Nov. 5, 2012)

The plaintiff’s employer was hired to perform “property preservation services.” At the time of his injury, plaintiff was performing a punch list of repairs including the repair of the chimney. Plaintiff’s fall occurred while cleaning the chimney. Plaintiff contends that the defendant is liable under §§200, 240(1), and 241(6). Under §240(1), the court held that the defendant was the agent of the owner of the premises and, therefore, is liable to plaintiff. The court also held that the defendant was liable under §200 and common law negligence because the defendant exercised sufficient control or supervision over the work being performed. The court allowed the §241(6) claim to proceed.

Practice Note: A viable §241(6) claim requires proof of a violation of “concrete specification” under 12 N.Y.C.R.R. Part 23.

Topics: Statutory Agent; Actual Supervision; Industrial Code Regulations; Routine Maintenance

topICs Index

AActual or Constructive Notice of

Dangerous Conditions 2, 5, 6, 9, 13

Actual Supervision 1, 3, 4, 5, 6, 13, 17

Alteration or Repair 14, 17Application of Force or Gravity

to an Object or Person 3, 11, 12, 15

Application of Labor Law 2, 3, 6, 8, 9, 10, 13

Authority or Control Over Work 1, 3

CCausation 3, 4, 5, 8, 10, 14Common Law Indemnification

6Comparative Negligence 5, 9,

11, 12, 16Contractual Indemnification 4,

6, 7, 8, 14, 16

DDangerous Conditions 2, 3, 6,

10, 12, 13Defective or Inadequate Safety

Equipment 3, 5, 6, 9, 15, 16Degree of Faul 3

EElevation Related Hazard 2, 3,

5, 9, 13, 15Exemption from Liability 3Expert Retention 3, 5

FFailure to Provide Protection 2,

4, 5, 8, 10, 12Falling Objects 3, 4, 5, 9, 15Foreseeable Risk of Injury 3, 4

GGeneral Supervisory Authority

1, 6, 9, 10, 12, 13Grave Injury 16

IIndustrial Code Regulations 3,

4, 5, 8, 9, 11, 12, 17

LLongshore and Harbor Workers’

Compensation Act 8

MManner and Methods 2, 3, 7, 10,

12, 13

NNotice of Disclaimer 14

OOne- or Two- Family Dwelling

Exemption 3, 7, 13

PPermanent Fixture or Structure

9Prima Facie Burden 3, 8, 12Procedural Issues 5, 6, 10, 11, 15Property Owner 12, 13, 15, 16Protected Activity 2, 9, 11, 14,

15, 17

RRecalcitrant Worker 4, 13, 16Routine Maintenance 2, 10, 17Routine Workplace Risk 5, 8

SSignificant Elevation Differential

11, 13Sole Proximate Cause 4, 5, 6, 8,

10, 13, 15, 16Special Employee 10, 12Statutory Agent 6, 12, 17

UUnforeseeable Intervening Act

Defense 12, 16Unprotected Hole/ Hazardous

Opening 12Unsecured Ladder 4, 5, 10, 14,

15

WWorkers’ Compensation 4, 10,

15, 17

winter 2013 labor law update

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