New York Civil Law

New York Court of Appeals Determines Another Labor Law sec. 240(1) Case

Earlier today, the New York Court of Appeals decided Berg v. Albany Ladder Co. -- a matter concerning Labor Law sec. 240(1).  In Berg, the plaintiff was hurt during the course of unloading steel trusses from a flatbed truck at a construction site.  The Appellate Division, Third Department Majority determined that the accident was not caused by the lack of a required safety device but, rather, by the improper movement of the trusses moved by a forklift.  The Court of Appeals affirmed, holding that the plaintiff failed to raise an issue of fact as to whether his fall was caused by the lack of safety device set out in sec. 240(1).  The Court seems to hint that this fall from approximately 10 feet up is not the type of height covered under sec. 240(1), citing Toeffer v. Long Island R. R.

Appellate Division, First Department Determines Superintendent Is Not Protected Under Labor Law

In Coombs v. Izzo Gen. Contr., the Appellate Division, First Department determined that the building's superintendent was not a protected person under Labor Law secs. 240(1) and 241(6).  The building was undergoing demolition and construction. 

The Court noted that

[the] plaintiff did not perform work integral or necessary to the completion of the construction project, nor was he “a member of a team that undertook an enumerated activity under a construction contract” * * *. As superintendent of the building, [the] plaintiff was responsible for maintaining the building, keeping it clean, supervising the building staff, and watching for unsafe conditions. Although the demolition and construction work made his job more difficult insofar as it affected the portion of the building that was not under construction, [the] plaintiff was not responsible for inspecting the areas of the building under construction. Nor was he responsible for performing any work related to the construction, and his job duties did not change after the project commenced

Recent Appellate Division, First Department Decision Regarding Labor Law sec. 240(1)

What happens when a ladder is inadequate for the task at one spot in the room, not because it is too short or lacked appropriate parts, but because when the ladder is placed in the only possible position at the location, its first rung is completely blocked and inaccessible?  The Appellate Division, First Department in Cohen v. Memorial Sloan-Kettering Cancer Ctr. recently addressed this Labor Law sec. 240(1) issue.  Writing for the Majority, Justice Saxe held that the owner and contractor violated sec. 240(1) even though the ladder provided was not defective.  The Majority discussed how the ladder was inappropriate for the injured plaintiff to ascend and descend in a safe manner given a certain obstruction in the room.

Justice Friedman dissented,  focusing on the lack of a defect in the ladder that the injured plaintiff used.  Justice Friedman also reasoned that the accident resulted from a separate hazard unrelated to the danger that brought about the need for the ladder in the first instance.

Appellate Division, Second Department Recent Reinstates Labor Law sec. 240(1) Claim -- New York's Scaffold Law

The Appellate Division, Second Department recently snatched victory away from the defendants in Castillo v. 62-25 30th Ave. Realty.  The Second Department reinstated the plaintiff's Labor Law sec. 240(1) claim after a jury verdict in the defendants' favor.

It is not clear from the facts, but it does not appear that the injured plaintiff was provided with a safety device.  The jury was presented with two different versions of how the accident occurred.  The plaintiff fell from a height while removing large, heavy metal racks from a wall. 

According to the deposition testimony of a coworker and eyewitness, the plaintiff fell from the elevated worksite when the metal rack he was working on suddenly came loose and, after he hit the floor, the metal piece he had been handling fell and hit him across the leg.   In contrast, after initially stating at his deposition that he had no recollection of how he got hurt, the plaintiff testified at his deposition that he was standing under the scaffold when a piece of the scaffold fell and hit him in the head.

The Court reasoned that under either version, the proximate cause of the plaintiff's injuries was a violation of Labor Law sec. 240(1).  The Court rejected the argument that the plaintiff's handling of the metal rack caused him to fall.  Because it appears that no safety device was provided, and the plaintiff was working at a height, the Court seemed to reason that the mishandling of the device could only have been a contributory factor to his fall (not a viable defense under sec. 240(1)).

Second, the Court held that falling piece of scaffold hitting the plaintiff also constituted a sec. 240(1) violation. 

Makeshift Platforms and Labor Law sec. 240(1) -- New York's Scaffold Law

What happens when a worker is standing on the ground floor but falls to a lower level?  When we think of Labor Law sec. 240(1), we frequently contemplate workers on ladders or scaffolds.

In Grigoropoulos v. Moshopoulos, the injured worker fell down to a basement when the makeshift platform upon which he was working failed.  Citing a case with similar facts (Figueiredo v.  New Palace Painters Supply, Inc.), the Appellate Department, Second Department held that the injured worked came within the ambit of sec. 240(1) becuase the evidence demonstrates that he was required to stand upon a makeshift plywood platform in order to perform his work and when that platform failed, he fell to the basement below.

Appellate Division, Second Department Addresses Two Labor Law Issues

The Appellate Division, Second Department addressed two straightforward Labor Law issues.

In Eisenstein v. Board of Managers of the Oak at La Tourette Cond. Secs. I-IV, the Court held that changing a light fixture constituted a repair, not routine maintenance, under Labor Law sec. 240(1).

In Dinallo v. DAL Elec., the plaintiff was injured when he tripped over a "jack assembly" at a worksite.  The Court held that the defendant was not negligent under Labor Law sec. 200 because the jack assembly -- which was described as being three feet high, 30 inches wide, and 30 inches deep -- was an open and obvious condition that was not inherently dangerous.

Jurisdictional Tidbits in Recent New York Court of Appeals' Decision

As reported in this prior post, the case of Pavlou v. City of New York raises some extremely interesting issues.  The seriously injured plaintiff commenced an action against the City of New York (the site's owner) under, among other statutes, Labor Law sec. 241(6) for violation of the specific State Industrial Code concerning maximum weight loads for cranes.  The City, in turn, commenced an action against the plaintiff's employer for contribution and indemnity based on its negligent maintenance of the crane; allegations existed that the crane had a crack in it before the accident.

The Majority and Dissenting opinions of the Appellate Division, First Department grapple with the jury verdict in which the jury found that the City's violation of the Labor Law was not a substantial cause of the accident but asserted 99% liability against the employer (a third-party plaintiff), even though the jury asserted no liability against the direct parties.

The New York Court of Appeals' held that the First Department did not abuse its discretion of reversing the trial court's order granting a new trial.  The first procedural tidbit is that the Court's review power over the certified question was restricted to whether the First Department abused its discretion in reversing the trial court's grant of a new trial.  Because the trial court granted a new trial based on its discretion and in the "interest of discretion," and the First Department reversed essentially in the interest of justice (even though it stated it did so on the law), the Court's review power is restricted to whether the First Department abused its discretion (the explanation of reviewability is best understood by reading Levo v.Greenwald, 66 NY2d 962, 963 (1985).

An additional jurisdiction point is that the Court could not review a prior nonfinal order, even if it necessarily affected the First Department Decision and Order below.  The appeal came up to the Court as a certified non-final question and, therefore, the Court did not have jurisdiction to review the prior nonfinal order (the best explanation for this conclusion is reading CPLR 5501(a)(1) ).

Appellate Division, First Department Split on Sole Proximate Cause Issue Within Labor Law sec. 240(1) Context

In Miro v. Plaza Constr. Corp., the plaintiff injured himself after he slipped off a ladder that was partially covered with sprayed-on fireproofing material.  He alleged that the fireproofing material caused him to lose his footing.  He claimed that he complained about the ladder's condition to the  building's superintendent, but the superintendent just shrugged.  At his deposition, the plaintiff testified that if a ladder was "in bad shape, they (i.e., his employer, Consolidated Electric) get rid of it and get you a new one"; that Consolidated Electric was "pretty good" about doing this; that workers would report a problem with a ladder to Consolidated Electric's "stockroom," which would send a replacement ladder to the job site; and - contrary to the dissent's assertion that "there is no proof in this record that any replacement ladder was available on site" - that Consolidated Electric had "a lot of ladders" available for use on its projects. The plaintiff also testified that "[i]f the journeyman sees a ladder, if it's in bad shape, he won't use it."

Relying on the Court of Appeals' decisions in Robinson v. E. Med. Ctr. LP and Cahill v. Triborough Bridge & Tunnel Auth., the Majority for the Appellate Division, First Department held that the plaintiff's choice of using the ladder even though he knew he could get a safer one was the sole proximate cause of his accident.  The Majority also rejected the Dissenting Justice's interpretation of the Robinson holding that it required alternate safety equipment to be on site.  The Majority held that Robinson merely held that the alternate safety equipment need be readily available.

It will be interesting to see if  this issue on this appeal makes it to the New York Court of Appeals.  In the face of a lot of recent Court of Appeals decisions on the issue, the parties might be stuck with the First Department duking this one out.

Appellate Division, First Department On Routine Maintenance vs. Repair Argument of Labor Law sec. 240(1)

The Appellate Division, First Department in Cordero v. SL Green Realty Co. addressed the often elusive repair (covered activity under sec. 240) versus routine maintenance (not covered) argument within the Labor Law sec. 240(1) context.  The Court held that the plaintiff's injury while replacing metal slats of a fully operational roll-down security gate was routine maintenance.   The Court relied upon Esposito v. New York City Indus. Dev. Agency.

Appellate Division, Second Department Addresses Interesting Labor Law Question

What is the liability of a company that supplied a crane to a contractor and acted as a conduit to supply a crane operator, but had no presence on the worksite and did not act negligently in connection with work who fell off the crane's boom?  The Appellate Division, Second Department recently held in Mahoney v. Turner Constr. Inc. that the crane company was not negligent and enforced the indemnity contract between the company and the contractor.  The plaintiff was injured when he fell from the crane's boom when it suddenly moved.  The Court addresses numerous issues that arise in these types of Labor Law disputes.