New York Civil Law

New York Court of Appeals Hands Down Decision on New York's Scaffold Law - Labor Law § 241 (6) - The Integral to the Work Doctrine

 Yesterday, the Court of Appeals handed down another decision—Ruisech v Structure Tone— addressing the integral to the work doctrine. The doctrine recognizes that certain work assignments are, by their nature, dangerous but still permissible, and the particular commands of the Industrial Code may not apply if they would make it impossible to conduct the work.

The plaintiff in Ruisech was attempting to install a 500-pound glass panel into a metal channel cut into the floor of a construction site. He slipped on concrete pebbles—that he believed came from the installation of the metal channel—and sustained injuries to his spine. The plaintiff testified that he did not create the channel or the pebbles. He testified that the work was performed by a separate crew hired by his employer.

The Court concluded that the defendants failed to meet their initial burden on their summary judgment motion seeking to dismiss the plaintiff’s Labor Law § 241 (6) claim. Rejecting their reliance on the integral to the work doctrine, the Court concluded that the defendant did not conclusively show that the pebbles were “‘inherent to the task at hand, and not . . . avoidable without obstructing the work or imperiling the worker’” (2024 NY Slip Op 104, *4 [2024] [citing Bazdaric v Almah Partners, LLC, 41 NY3d 310 (2024)]). The Court in Bazdaric, earlier in the year, clarified that a condition is “integral to the work” only if it is inherent to the task at hand and unavoidable without obstructing or endangering the worker.

Two other important points in the Ruisech decision are:

• Under Industrial Code § 23-1.7 (d), (a) the pebbles could qualify as a “foreign substance” since they were neither part of the floor nor essential to its functionality, and (b) the pebbles allegedly caused a “slippery condition,” meeting the provisions criteria; and
• Under Industrial Code § 1.7 (e) (2), the pebbles could create a hazardous condition because the provision applies to “other hazards,” not just tripping.

The Court’s holdings in Ruisech and Bazdaric signal a narrowing of the integral to the work doctrine. Defense counsel can build their defense and reliance on the doctrine at the early stages of litigation during their investigation of the claim and questioning witnesses at depositions. The integral to the work doctrine is still alive and an excellent defense where the facts support its application.

New York Courts' Recent Evidence Decisions on Impeachment

Several decisions concerning evidentiary issues have caught my attention this past week.

CPLR § 4513 states, "A person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either by cross-examination, upon which he shall be required to answer any relevant question, or by the record. The party cross-examining is not concluded by such person's answer."

Impeachment of a witness's credibility is important to cross-examination. Impeachment of medical providers has come up a lot lately in New York. For example, the Appellate Division, First Department in Caminiti v Extell W. 57th St. LLC, concluded that the defense attorney properly impeached the decedent's primary care physician with federal charges involving dishonesty and underlying facts. The First Department noted that the trial court should not have allowed extrinsic evidence of the physician's divorce proceeding and administrative appeal.

In Coakley v New York City Transit Auth., Supreme Court, New York County (Clynes, J.), granted the plaintiff's motion to preclude the defendants from cross-examining the plaintiff's treating surgeon and anyone affiliated with him concerning a recent federal lawsuit against him. The lawsuit has not been fully adjudicated, and the Supreme Court concluded that the veracity of the allegation had not been determined. The Court stated that the allegations of misconduct are unproven and had no bearing on any issue in the case. (see Download Coakley Decision and Order)

A second case -- McGill v Whitney Museum of Art -- granted a plaintiff's motion to preclude on a similar issue as presented in Coakley (see Download McGill v Whitney Museum of Am. Art (2024 NY Slip Op 51271(U))).

 

 

New York Scaffold Law Recent Decision - Does New York Labor Law sec. 241 (6) Apply to a Piece of Plywood Deliberately Placed on Floor?

The integral-to-the-work doctrine to Labor Law § 241 (6) has received considerable attention this past year. New York Civil Law is waiting on the New York Court of Appeals' decision in Ruisech v Structure Tone Inc., which was argued last month (see post here). The Court of Appeals addressed the doctrine earlier this year in Bazdaric v Almah Partners LLC. In Bazdaric, the Court explained that the integral-to-the-work doctrine "applies only when the dangerous condition is inherent to the task at hand, and not when a defendant or third party's negligence created a danger that was avoidable without obstructive the work or imperiling the worker."

Last week, the New York Appellate Division, First Judicial Department in Cioppa v ESRT 112 W. 34th Street L.P. addressed an alleged construction site accident concerning a piece of plywood used as temporary flooring over an unfinished and uneven concrete floor. The plaintiff claimed that he fell after stepping into a hole in a piece of plywood and then into a hole in the floor. The plywood was deliberately placed on the stripped floor as a protective measure in response to the plaintiff's complaints. The motion court granted the defendants' motion for summary judgment dismissing the Labor Law § 241 (6) claim based on a violation of New York Industrial Code (12 NYCRR) § 23-1.7 (e) (2).

Analyzing the provision, the First Department stated that section 23-1.7 (e) (2) "does not apply to all potential tripping hazards but only to 'accumulations of dirt and debris,' 'scattered tools and materials,' and 'sharp projections.'" The First Department concluded that, as a matter of law, the plywood board, notwithstanding its hole, could not be described as an "'accumlation[] of . . . debris' or as part of a "'scatter[ing]' of 'tools and materials.'"

You might be asking, "What does this case have to do with the integral-to the-work doctrine?" The appellant relied on the doctrine and the Court of Appeals' holding in Bazdaric, arguing that the plywood could not be considered integral to the plaintiff's work. In a footnote, the First Department alludes to the appellant's argument--without referring to the integral to work doctrine--and concludes that the reasoning in Bazdaric does not readily apply to the circumstances of this accident because the "deliberately placed plywood board" does not constitute "an 'accumulation[] of . . . debris' or 'scattered . . . material' within the meaning of section 23-1.7 (e) (2). In the same footnote, the First Department distinguishes the facts of the appellant's alleged accident from those in Lourenco v City of New York. In Lourenco, the worker tripped on plastic sheeting that had been discarded from a previous stage of the work. Under those circumstances, the First Department concluded that the plastic sheeting constituted "debris" and therefore, supported a violation of section 23-1.7 (e) (2).

The appellate briefs in Cioppa discuss the integral-to-the-work doctrine in depth. Even though the First Department decided the appeal on different grounds, it is valuable to review the appellate briefs.

Appellant's Brief: Download Cioppa Appellant's Brief

Third-Party Defendant/Respondent's Brief: Download Third-Party Defendant Respondent's Brief

Defendant/Respondent's Brief: Download Defendant's Respondent's Brief

Reply Brief: Download Reply Brief

Spoliation of Evidence in New York Lawsuit - Recent New York Decision, Court Strikes Spoliators' Pleading

It is rare when a New York court strikes a pleading based on spoliated evidence. New York Supreme Court Justice Gary M. Carlton did just that in his recent decision in Zabielski v The North Shore Central Sch. Dist. (Supreme Court, Nassau County [Index No. 605997/2023]). In Zabielski, the plaintiff alleged that her son, while engaging in football practice on his high school's turf field, injured his right knee and leg. The plaintiff claimed her son's right foot became stuck in the turf field while practicing. She commenced a personal injury lawsuit against the high school and the school district. One other player commenced a separate personal injury lawsuit asserting similar allegations. 

The dates of the procedural history in the case are important. The plaintiff served a notice of claim on the defendant school district on August 26, 2022, and they held  General Municipal Law § 50-h hearing on December 28, 2022. The plaintiff commenced the lawsuit in April 2023, and the defendant school district served its answer in May 2023. The school district and high school had the football field destroyed and replaced during the summer of 2023, a few months after the plaintiff commenced the lawsuit.

The school district and high school commenced a third-party action against the supplier of the artificial field surface (Fieldturf) and installer (Landtek). The plaintiff moved for an order striking the school district and high school's answer based on their spoliation of the artificial turf during the pendency of the lawsuit. Also, based on the spoliation, Fieldturf and Landtek moved to preclude the school district or any other party from asserting a claim that some act or omission of Fieldturf or Landtek caused or contributed to the plaintiff's alleged injuries.

The Court concluded that the turf destruction was central to the plaintiff's case and prejudicial, justifying the striking of the school district and high school's answer. The Court's rejection of the school district and high school's reliance on the holding of Klein v Ford Motor Co. (303 AD2d 376 [2d Dept 2003]) shows an important distinction. In Klein, the plaintiff sued a car manufacturer, claiming a design defect caused her car to overturn due to an "unexceptional" automobile collision. She made the car available for inspection, and the defendant manufacturer took many photographs. The motion court ordered the plaintiff to preserve the automobile, which was later inadvertently scrapped by a non-party storage facility.

The Appellate Division, Second Department reversed the motion court's dismissal of the complaint, reasoning that the striking of the pleading was a drastic sanction under the circumstances. The Court stated that the plaintiff's lawsuit was based on an alleged design defect and that there was a "growing recognition" that a manufacturer could adequately defend a design defect lawsuit by looking to other products of the same design. Thus, the negligent spoliation of the car was not prejudicial to the manufacturer.

The plaintiff, Fieldturf, and Landtek demonstrated to the motion court that, unlike Klein, the actual subject of the suit was central to the plaintiff's case. All three parties produced expert affidavits explaining that the spoliation prevented their experts from testing the artificial turf and establishing causation. In opposition, the school district and high school's attorney argued that the passage of time or the "grooming" of the field by Landtek on two occasions "would have made it impossible to render a determination that the field conditions extant when tested were substantially similar to how they existed on the dates that each plaintiffs' injury." The motion court rejected the school district and high school's argument, concluding that "[t]he record demonstrates that the defendant disposed of the turf field while aware of two pending cases, despite having received two Notices of Claim alleging a defective surface and having conducted two 50-H hearings alleged the same." The motion court concluded that the plaintiff demonstrated the school district and high school's spoliation of the field unduly prejudiced her because her expert did not have the opportunity to test the field, and the condition of the field was central to her case.

The timing of the spoliation is compelling in this case. The court does not mention whether the plaintiff sent a preservation letter at any point in the litigation. Sending opposing counsel or the party preservation of evidence letter at the earliest point in the litigation as possible also builds a case for spoliation and, more importantly, the drastic sanction of striking a pleading.

The school board and high school have filed a notice of appeal and will likely perfect it.

Read the decision and order here:  Download Zabielski v The North Shore.