New York Civil Law

Appellate Division, First Department Applies Salazar versus Novalex Contracting Corp. in Recent Labor Law sec. 240 (1) Case

Labor Law § 240 (1), New York's Scaffold Law, certainly has a broad reach. A recent New York Appellate Division, First Department case—Marte v Tishman Constr. Corp.—provides one example of the limits of the statute.

Before discussing Marte, a short discussion of    Salazar v Novalex Contracting Corp. is necessary. Salazar stands for the proposition that a court will not find a Labor Law § 240 (1) violation when the use of a safety device would have been impractical and contrary to the very work at hand. The plaintiff's work in Salazar was to pour and spread concrete on a basement floor. The outer sections on the floor had a trench system with holes. The plaintiff's accident happened when he was "pulling" the concrete and walking backwards, ultimately stepping into one of the holes in the trench and injuring himself. The plaintiff argued that there should have been some type of protective device covering the trench to prevent workers from stepping into holes.

The New York Court of Appeals cut to the heart of the issue, stating that it was not going to quibble about whether there was actually a device to cover the trench system and, if so, whether the device would come within the term "other devices" stated in the statute. Instead, the Court focused on whether such a device would frustrate the task at hand. The plaintiff was tasked with spreading concrete across the entire basement floor, including the trenches. The Court stated, "[I]t would be illogical to require an owner or general contractor to place a protective cover over, or otherwise barricade, a three- or four-foot-deep hole when the very goal of the work is to fill that hole with concrete." Stating that there should be a common-sense approach to the realities of the workplace at issue, the Court concluded that Labor Law § 240 (1) did not apply.

That brings us to Marte. The plaintiff in Marte was laying rebar and somehow fell four feet below the rebar deck he was standing on while working. In support of his section 240 (1) claim, the plaintiff argued that there should have been plywood or wooden plank on top of the rebar deck to protect him from falling through it. Noting that there was testimony that concrete was going to be poured over the rebar following the work in which he was engaged, the First Department concluded that the motion court properly denied the motions of all parties on the Section 240 (1)  claim. The First Department cited Salazar for its conclusion, indicating the realities of the plaintiff's work made it impractical to place plywood and wooden planks on the rebar deck.  

My law partner at Gerber Ciano Kelly Brady LLP, Brendan Fitzpatrick, wrote the appellate brief and argued the appeal. 

New York Court of Appeals Hears Oral Arguments on Labor Law sec. 241 (6) Issue Concerning 23-1.7 (e) (2) (Integral to the Work Defense)

The New York Court of Appeals will hear oral arguments tomorrow (webcast here), October 15, 2024, on a Labor Law § 241 (6) issue. More specifically, the Court will address the interpretation of New York Industrial Code provision 23-1.7 (e) (2).

The Court recently addressed an "integral to the work" doctrine within the context of New York Industrial Code provision 23-1.7 (d) in Bazdaric v Almah Partners LLC.

The pending appeal in Ruisech v Structure Tone Inc. concerns a construction site accident where the plaintiff, employed by A-Val (a subcontractor), slipped on pebbles while installing a glass divider. The key focus of the appeal involved claims under Labor Law § 241(6), based on Industrial Code § 23-1.7(d) and (e) (2).

The court dismissed the Labor Law § 241(6) claim against defendants Park (property owner), CBRE (tenant), and Structure Tone (general contractor), and Tishman-Speyer (property manager) determining, among other things, that the pebbles on the floor were "debris integral to the work" being performed rather than a "foreign substance" causing slippery conditions. The Appellate Division concluded that the "integral to the work" doctrine was applied here, and the doctrine excluded debris from constituting a hazardous condition if it was directly related to ongoing construction activities. This ruling reinforced prior case law (e.g., Krzyzanowski v City of New York) that debris arising from the work itself does not trigger liability under § 23-1.7 (e)(2).

In support of his motion for leave to appeal to the Court of Appeals, the plaintiffs stated, "[W]hile the trial court held that issues of fact were present, the Appellate Division decided as a matter of law that the debris on which the Plaintiff slipped was 'an integral part of the construction," despite that the accumulations of 'debris' is one of the hazards from which the code expressly seeks to protect workers." The Plaintiffs argued that the Appellate Division's holding is inconsistent with the reasoning underlying the "integral part of the construction" exception because it extends the exception so far beyond the Court's decision in O'Sullivan v IDI Const. Co. that it subsumes the regulations entirely (See attorney affirmation here: Download RuisechvStructureTone-app-Ruisech-mot).

The parties' briefs to the Court of Appeals are provided below:

Appellants' Brief:  Download Ruisech v. Structure Tone_App_Ruisech_Brf 

Respondent's Brief (CBRE): Download RuisechvStructureTone-res-CBRE-opp

Responent's Brief (Structure Tone): Download RuisechvStructureTone-res-StructureTone-opp

Respondent's Brief (Tishman-Speyer): Download RuisechvStructureTone-res-TishmanSpeyer-opp

Respondent's Brief (A-Val): Download AvalRuisechvStuctureTone-res-Aval-brf

Reply Brief: Download RuisechvStructure_App_Ruisech_replybrf

The New York Court of Appeals Decides Recent Appeal About Labor Law § 240 (New York's Scaffold Law) and Repairing A Commercial Vehicle

The pendulum is an apt metaphor to analyze developments in the caselaw. New York's Scaffold Law—Labor Law § 240 (1), in particular—has the pendulum swinging back-and-forth more frequently than New York courts' interpretation of other statutes.

The New York Court of Appeals recently addressed an appeal concerning the repair of a commercial vehicle and whether the plaintiff's injuries were proximately caused by a violation of Labor Law § 240 (1). In Stoneham v Barsuk, the plaintiff was severely injured while lying underneath a commercial trailer to repair its air brake system. The plaintiff used a front loader with a bucket attachment to lift the trailer approximately five-and-a-half feet off the ground. At some point during the repair, the front loader rolled backward and the trailer fell on the plaintiff.

Does Labor Law § 240 (1) apply to the accident in Stoneham?

In the early 2000s, the Court of Appeals narrowed the reach of the Scaffold Law, especially in the realm of the sole proximate cause defense (Blake v Neighborhood Services of New York City, Inc.). Later in the decade, the pendulum swung toward a more liberal view of the Scaffold Law in Runner v New York Stock Exchange Inc. Has the pendulum swung back to a narrower view of the statute?

The Court's majority in Stoneham concluded that the "plaintiff was engaged in ordinary vehicle repair, which is not a protected activity under Labor Law § 240 (1)." Notably, the Court's majority stated that it was "[e]mploying a holistic view of the statute" in deciding whether the plaintiff was engaged in an activity that came within the extraordinary protections of New York's Scaffold Law. The majority stated that applying Labor Law § 240 (1) to "ordinary vehicle repair" would extend the statute far beyond the purposes the statute was designed to serve.

Judge Cannatoro disagreed, stating that the majority "ha[d] not provided any authority for its novel view that the legislature did not intend 'ordinary vehicle repair' to qualify as a protected activity." He noted that the Court looks to the specific safety devices enumerated in the statute "[t]o determine what type of hazards are protected" under Labor Law § 240 (1). Judge Cannataro concluded that there is a least a question of fact in Stoneham as to whether the protections of Labor Law § 240 (1) are available because the plaintiff sustained an injury from a "'significant elevation differential' which could have been avoided by the provision of appropriate safety equipment."

Although Judge Cannatoro was the lone dissenter in Stoneham, his analysis may gain traction in future cases.

Because there is no shortage of Scaffold Law cases reaching the New York Court of Appeals, we will soon learn whether the pendulum has swung back to a more narrow reading of Labor Law § 240 (1). One thing I'm sure of, practitioners will be using the phrase "employing a holistic view of the statute" in many motions and appeals going forward.

 

Appellate Division, Fourth Department Recently Addresses Impact of Coworker's Actions under Labor Law sec. 240 (1) Claim

Can an injured plaintiff evade an adverse finding of sole proximate cause on summary judgment by pointing to his or her coworker’s conduct. The Fourth Department recently addressed this issue in Thomas v North Country Family Health Ctr., Inc.

NY Court of Appeals’ caselaw tells us that a worker is the sole proximate cause of an accident where “plaintiff had adequate safety devices available; that he [or she] knew both that they were available and that he [or she] was expected to use them; that he [or she] chose for no good reason not to do so; and that had he [or she] not made that choice he [or she] would not have been injured” (Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]).

Some cases present straightforward facts, making a determination of sole proximate “easier” than other cases. For example, the Court of Appeals held in Montgomery v Federal Express Corp. (4 NY3d 805 [2005]), that the plaintiff, who used an overturned bucket to access an elevator motor room, was the sole proximate cause of his accident. The Court stated that ladders were available at the job site but not in the immediate vicinity where the plaintiff and his coworker were working. The Court stated, “Rather than fetch a ladder, however, the workers climbed to the motor room on an overturned bucket . . . [and] the plaintiff exited the motor room by jumping to the roof.” Citing a cornerstone Section 240 (1) case, Blake v Neighborhood Hous. Servs. of N.Y. City (1 NY3d 280 [2003]), the Court noted that “since ladders were readily available, [the] plaintiff’s normal and logical response should have been to go get one.”

What happens when a coworker denies the plaintiff use of an available safety device and, rather than speak to the foreman, the plaintiff takes it upon himself or herself to perform his work without the safety device?

In Thomas, the plaintiff and his coworker were working as a team, hanging sheetrock at a height on a building the defendants owned and operated. On the morning of the accident, the plaintiff stood on the ground and cut pieces of sheetrock while his coworker used a provided scissor lift to raise the cut sheetrock from ground level. The coworker then accessed the elevated portions of a 20-foot wall where he would fasten the sheetrock in place.

The coworker had a different idea for the afternoon work. He asked the plaintiff to climb a ladder and hand him a piece of sheetrock, all for the sake of convenience. The coworker told the plaintiff using a ladder would be faster, likely because the coworker did not want to keep reposition the scissor lift. Based on his years of experience, the plaintiff knew that using the scissor lift was the proper and expected way to perform the task of lifting the sheetrock. Rather than insisting that his coworker follow the proper method,or addressing the issue with his supervisor, the plaintiff attempted to use an A-frame ladder to carry with one hand an approximately 90-pound piece of sheetrock up the ladder. The ladder tipped over and the plaintiff was injured in the resulting fall.

Does the sole proximate cause defense apply?

The Majority concluded a triable issues of fact existed on whether the defendants violated Labor Law sec. 240 (1) or whether the plaintiff was the sole proximate cause of the accident. The Majority focused on whether the plaintiff chose to use the ladder over an “available” scissor lift for “no good reason.” Noting that the accident concerned “unique circumstances,” the Majority concluded that, in light of the coworker’s alleged conduct, “the evidence is not conclusive about whether plaintiff chose to use the ladder over an ‘available’ scissor lift for ‘no good reason.’” The Majority reasoned that the “intransigence” of the coworker who refused the plaintiff’s request to reposition the scissor lift was a proximate cause of the accident. Thus, the Majority concluded that “when [the] plaintiff’s conduct is viewed along with the coworker’s conduct, it cannot be said as a matter of law that [the] plaintiff was the sole proximate cause of the accident."

Justice Peradotto disagreed, stating that the Majority “strain[ed] Labor Law sec. 240 (1) beyond what the legislature intended to accomplish and improperly penalizes owners and contractors for complying with the law.” Justice Peradotto cited the plaintiff’s deposition testimony; he was emphatic in his testimony that using a ladder for the work was an inappropriate method for performing the task. Justice Peradotto concluded that the “plaintiff cannot, as a matter of law, evade an adverse finding of sole proximate cause on summary judgment by attributing his conduct to the coworker.” Justice Peradotto stated that the plaintiff’s “‘normal and logical response’” to his coworker’s unsafe request was to ask the coworker again to reposition the scissor lift and wait for him to do. Perhaps a more effective response would have been for the plaintiff to raise the issue with his supervisor; Justice Peradotto mentions this option, too.

Justice Peradotto rejected the Majority’s proximate cause analysis stating, “The majority's reference to the coworker's conduct as a proximate cause of the accident is thus incorrect not only on the facts but also on the law inasmuch as the majority's sole proximate cause analysis improperly substitutes the supposed negligence of the nonparty coworker for a statutory violation by defendants.”  

The case is notable for several reasons. First, decisions in which Justice Peradotto’s dissents have found their way to the Court of Appeals on several occasions. Second, the Majority decision adds a gloss to the sole proximate cause defense – i.e., can an injured plaintiff evade an adverse finding of sole proximate cause on summary judgment by pointing to his or her coworker’s conduct? The Majority answered in the affirmative, narrowing its holding by stating the matter concerned “unique circumstances”.

Because the Majority denied the defendants’ cross-motion in part and reinstated the Labor Law sec. 240 (1) claim, the order is non-final. Thus, at this point, the defendants’ only avenue to the Court of Appeals is to move at the Fourth Department to grant leave to appeal to the Court of Appeals. The Fourth Department, like the other three Departments, is careful to grant leave to appeal sparingly. For now, though, lawyers for injured workers can make a good-faith argument that the Thomas applies outside of the Fourth Department because the other three Departments have not ruled on this precise issue.

(40 years ago this week, the out-of-leftfield hit "Abracadabra" by The Steve Miller Band reached No. 1 on the Billboard Hot 100)

Photo by Theen Moy

New York Appellate Division, Second Department Addresses Falling Object Accident - Labor Law § 240(1)

The New York Appellate Division, Second Department handed down an interesting Labor Law § 240 (1) decision recently. In Wiski v Verizon N.Y., Inc., the accident concerned a falling object accident (see recent post discussing falling object case). The injured plaintiff fell from a scaffold while performing asbestos abatement work for his employer. While standing on the scaffold, the injured plaintiff was removing ducting from the ceiling. A section of the ducting bent downward and struck the scaffold, causing him to fall.

At a deposition, the injured plaintiff testified that he was provided with the scaffold and with a hoist to use for securing and gradually lowering the ducting segments. Notably, he was not using the hoist when the accident occurred.

The appeal concerned the trial court's denial of the plaintiffs' cross-motion for summary judgment on liability concerning a violation of Labor Law § 240 (1). The Second Department concluded that the plaintiff failed to meet their initial burden on summary judgment. The Court concluded that the injured plaintiff's deposition testimony raised a triable issue of fact as to whether the ducting posed an elevation-related risk that required securing for the purposes of the undertaking. The Court pointed out that the injured plaintiff testified that the ducting was light enough to be held up by his hands after being cut. Such an object is arguably different than the dolly involved in the accident at issue in Outar v City of New York.

Without much discussion about the sole proximate cause defense, the Second Department in Wiski stated, "[i]n any event, the injured plaintiff was provided with an enumerated safety device, the hoist, which he declined to use to secure the subject ducting prior to cutting it." Finally, the Court also stated that the plaintiffs failed to show by evidence in admissible form that the scaffold provided to the injured plaintiff was inadequate to protect him.

Appellate Division, First Department Builds Off of Court of Appeals Labor Law § 240(1) Case -- Outar v City of New York

The facts in the recent case Diaz v Raveh Realty, LLC concern an important aspect of New York's Scaffold Law -- Labor Law § 240( 1). The mechanism of the accident in Diaz implicates the aspect of § 240(1) which seeks to protect a worker from a falling object that was being secured or should have been secured. The worker must show that the absence or inadequacy of a safety device of the kind enumerated in the statute caused the object to fall. The mechanism of the accident in Diaz is an instance where a securing device would have been necessary or expected.

In Diaz, the plaintiff was injured at a construction site owned by the defendant while employed as a carpenter. His co-workers were stripping plywood forms from a cured concrete-poured ceiling. The project overseer for the defendant acknowledged that such plywood forms would be secured by a rope when being removed from near the building's edge. The plaintiff's expert opined that a safety device was required to secure the formwork to protect against the risk that the formwork would fall. 

The plaintiff was injured when he was hit by a heavy four inch by eight inch plywood form that fell or was dropped by co-workers who were stripping plywood forms from the cured concrete-poured ceiling. The plaintiff was looking down to clear debris when the accident happened, so it is unclear whether he was hit by the plywood that a co-worker dropped or tossed or was hit by a loosened plywood form that fell from the ceiling. The Appellate Division First Department found that, in either instance, the plaintiff was entitled to partial summary judgment on his §  240(1) claim. 

The First Department cited Gutierrez v 610 Lexington Prop, LLC, concluding "[t]he type of work being performed . . . involved a load that required securing . . . ." The Court stated further that, "because [the] plaintiff's injury was the foreseeable consequence of the risk of performing the task without any safety device of the kind enumerated in the statute, he was entitled to partial summary judgment." 

Gutierrez and two Court of Appeals cases provide context for the First Department's holding in Diaz. Gutierrez concerned a worker who fell backwards when he was being passed a heavy concrete form from workers on a scaffold above and was unable to control the form's descent. The accident in Gutierrez is similar to a Runner v New York Stock Exch. Inc. type of accident -- i.e., where an accident is caused by a heavy object that generates enough force to injure a worker, even if the fall is from a de minimis height.

The facts underlying the Court of Appeals' memorandum decision in Outar v City of New York  equally apply to a "securing a load" type of accident like the one in Diaz (Second Department Outar Decision & Order).

New York Law Law § 241(6), Substantial Factor & Juror Confusion

The facts in the recent Appellate Division, Second Department decision in Torres v City of New York are a good example of an attorney's need to listen closely to the trial court's charge to the jury. It also shows that a litigator should "run through" the proposed verdict sheet well in advance of the trial in anticipation that the court might get notes from the jury. Torres concerns the intersection of three interesting issues: Labor Law § 241 (6), the concept of substantial factor in tort law, and juror confusion.

The plaintiff injured his right hand while working as a member of an excavation crew on a project in Staten Island, NY. The City of New York and City of New York Department of Design and Construction hired the plaintiff's employer to work on the project. A bucket excavator crushed the plaintiff's hand against the inside of a steel trench box while he was working inside of it. The box was 10 feet below grade level

The plaintiff, and his wife suing derivatively, commenced a personal-injury action against, among others, the City defendants, alleging, among other claims, a violation of Labor Law § 241 (6). The § 241(6) cause of action was premised upon an alleged violation of Industrial Code 12 NYCRR) § 23-4.2 (k), which provides, in relevant part, that "[p]ersons shall not be . . . permitted to work in any area where they may be struck . . . by any excavation equipment."

A jury trial was held on the issue of the City defendants' liability. During deliberations, the jury sent a note to the trial court requesting, among other things, a written copy of Labor Law § 241(6). The trial court denied the request and, instead, repeated its charge on the law. Note: It is important to make sure the court's recitation of the jury charge accords with the Pattern Jury Instructions (PJI) word-for-word to make sure there is no error. In Torres, the plaintiffs' attorney subsequently advised the court that it erred in its charge to the jury by omitting a portion of the PJI and requested a curative instruction. More specifically, the court did not instruct the jury that in order to return a verdict in the plaintiffs' favor and against the City defendants on the issue of liability, it must find that "the failure to use reasonable care was a substantial factor" in causing the injured plaintiff's injuries. The court denied the request.

An inconsistent verdict followed. The jury found that the City defendants violated 12 NYCRR § 23-4.2 (k) but that the violation was not a substantial factor in causing the accident. Although the instructions on the verdict sheet directed the jury to end its deliberations if it found that the violation of Industrial Code (12 NYCRR) § 23-4.2 (k) was not a substantial factor in causing the accident, the jury further found that the injured plaintiff was negligent and that his negligence was a substantial factor in causing the accident. The jury then proceeded to apportion fault 25% to the City defendants and 75% to the injured plaintiff. How could the jury apportion fault against the City defendants while finding that they were not a substantial factor causing the accident?

The trial court instructed the jurors to reconsider the verdict. More confusion ensued. The jury returned a second verdict which was identical to the first verdict, except that the jurors did not answer the questions as to the injured plaintiff's negligence and the apportionment of the parties' fault. Under these circumstances, you certainly cannot assume the jury did not find fault against the plaintiff. 

The plaintiffs then moved pursuant to CPLR 4404 (a) to set aside the jury verdict, which the Court denied. The court subsequently issued a judgment in favor of the City defendants and against the plaintiffs, in effect, dismissing the cause of action alleging a violation of Labor Law § 241 (6).

Since the jury's initial verdict was internally inconsistent, the Second Department agreed with Supreme Court's determination to direct the jury to reconsider its verdict. Because the jury in its second verdict did not answer the questions regarding the plaintiff's negligence, the Second Department concluded that the record supported the conclusion that the second verdict, although internally consistent, was unreliable and the product of substantial juror confusion The Second Department noted that, after the jury returned its initial verdict, the trial court simply advised the jury to follow the directions on the verdict sheet. The Second Department concluded that the trial court should have reinstructed the jury on the concept of comparative fault and the meaning of the term "substantial factor," especially in light of the fact that its prior charge "incompletely convey[ed] the germane legal principles to be applied" (J.R. Loftus, Inc. v White, 85 NY2d 874, 876 [1995]).

The Second Department reversed the judgment and ordered a new trial.

Appellate Division, Third Department Recently Finds An Question of Fact As To Sole Proximate Cause in Labor Law Context

In Silvia v. Bow Tie Partners, LLC, the Appellate Division, Third Department addressed a sole proximate cause issue within the Labor Law sec. 240(1) context.  In Silvia, the plaintiff was allegedly injured when a plank on which he was standing as part of a makeshift scaffold broke beneath him, causing him to fall several feet.  Notably, the defendant D & B Acoustical -- the plaintiff's employer -- supplied deposition testimony of a carpenter it employed.  The testimony revealed that the carpenter observed the plaintiff with the plank that ultimately broke and told him not to use it because it was cracked.  The testimony also revealed that the plaintiff told the carpenter that he did not care if the board was cracked.  D & B proffered evidence that there were OSHA complaint planks next to a dumpster just outside a doorway adjacent to the area where the plaintiff was working.  A expert also opined that (1) scaffolds are safety devices for the purposes of sec. 240(1), and (2) the scaffold planking used here was compliant with applicable regulations and that to the plaintiff's injuries were caused by his failure to use a sound plank that was available.

The Third Department concluded that D & B raised questions of fact with regard to whether there was a statutory violation and whether the plaintiff's conduct was the sole proximate cause of his injuries.  Between Panels, the Third Department is inconsistent as to the sole proximate cause defense (a point discussed in the next post regarding Murray v. Arts Center & Theater of Schenectady, Inc.)

New York Court of Appeals Revisits Sole Proximate Cause Defense

With the last few Labor Law decisions from the New York Court of Appeals (read post here and here) acting as a backdrop, I've heard defense attorneys complain that the Court has cut back the sole proximate cause defense in its recent decision Gallagher v. New York Post.  The decision in Gallagher seems less to do about the Court retracting from its prior decisions on this defense and more about the proof that was adduced on summary judgment (see prior post).  

The plaintiff in Gallagher was injured when he fell into an opening decking floor after the blade of a circular cut-off saw he was using became bound up in the decking that he was cutting.  At his deposition, the assistant project manager at the work site testified that "safety harnesses with shock-absorbing lanyards" and "retracting lanyards" were available for use.  He could not say whether any of those safety devices were in the area from which the plaintiff fell.  The assistant project manager also testified that, at the time of the accident, there was a "standing order," issued by the project manager to the project foremen, that the ironworkers should "have a harness on and be tied off".  He could not recall whether these instructions had been given to the ironworkers.

The plaintiff and his wife moved for partial summary judgment on his Labor Law sec. 240(1) claim, pointing to the affidavit of his co-worker who stated that "there were no safety lines, lifelines or stanchions in the work area, and [he and the plaintiff] were not provided with safety belts, harnesses or yo-yos in order to tie off."  The defendant owner relied on the assistant project manager's deposition testimony that safety devices were available for use at the project site; it also relied on the "standing order".

In further support of their motion, the plaintiff adduced an affidavit signed by the injured plaintiff's foreman.  The foreman would have been the person responsible for relaying safety instructions to the ironworkers.  The foreman stated that the injured plaintiff had not been provide with a safety harness or lifeline, nor were any stanchions or safety cables in the accident area at the time of the accident."

The Court granted the plaintiffs' partial summary judgment motion, holding that the owner's evidence did not raise a question of fact that the injured plaintiff knew of the availability of the safety devices and unreasonably chose not to use them.  The Court pointed out that there was no evidence that the injured plaintiff knew where to find the safety devices that the owner argued was available.  

The Court also pointed out that there was no evidence that the injured plaintiff was expected to use the safety devices.  The owner failed to proffer evidence demonstrating that the injured plaintiff had been told to use the safety devices.  Although the owner pointed to the "standing order," there was no evidence that anyone conveyed the order to the ironworkers.  The Court also relied on the foreman's affidavit to demonstrate the injured plaintiff had not been provided with the requisite safety devices.  The Court noted that the foreman's affidavit was consistent with the conclusion that the injured plaintiff was ignorant of the availability of safety devices or with his knowledge thereof.

The Court distinguished its prior holdings in Montgomery v. Federal Express Corp. and Robinson v. E. Med. Ctr. LP.  The Court noted that both cases stand for the same proposition: Liability under sec. 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing the accident.  The Court concluded that the Gallagher facts did not present such a case.

Gallagher defines the outer boundaries of the prior sole proximate cause cases; the decision appears less a chipping away of the sole proximate cause defense and more an explanation of what proof a defendant must proffer to apply the defense successfully.

New York Court of Appeals Hears Oral Argument on Sole Proximate Cause within Labor Law sec. 240(1) Context

The New York Court of Appeals just yesterday heard oral arguments in Gallagher v. New York Post, which concerns an issue of the sole proximate cause defense within the Labor Law context.  In Gallagher, the plaintiff injured worker fell into an opening in decking floor after the blade of a circular cut-off saw he was using became bound up in steel decking that he was cutting.  The plaintiffs moved for summary judgment on the issue of liability on their Labor Law sec. 240(1) cause of action.

The Appellate Division, First Department Majority held that the trial court properly denied the plaintiffs' motion because material issues of fact existed on whether the worker chose not to use an available safety device.  The Majority held that the evidence proffered in opposition to motion demonstrated more than "[m]ere generic statements of the availability of safety devices."  The Majority hinged this conclusion on the testimony of the worker's employer's assistant project manager, who stated that (1) he had weekly meetings with the safety specialist hired to oversee the construction project in question; (2) the ironworkers were required to use certain safety devices, such as lanyards, cables or harnesses, when working near open areas; (3) the devices were used to prevent injury in case a worker fell through an opening or off an elevated surface; (4) the safety devices were available on the job site the day the worker was injured; and (5) a standing order was in place that all workers operating around any opening in the floor were to be in a harness and tied off.

Justice Catterson, with Justice Moskowtiz joining, dissented in part and concluded that the motion should have been granted because no triable issues of fact existed regarding whether the requisite safety equipment was made available and, if so, whether the injured worker chose not to make use of it.  Justice Catterson observed that no evidence existed in the record that the worker chose not to use an available safety device.  He reasoned that every worker except the worker's employer's assistant project manager testified that no safety devices were provided to the ironworkers.  Justice Catterson pointed out that the assistant project manager's testimony did not state that the worker was told to use certain safety devices and that he declined and that he had "no good reason not to do so."

The Court of Appeals' decision will likely provide more clarification to its holdings in Montgomery v. Federal Express Corp., Cahill v. Triborough Bridge & Tunnel Auth., and Blake v. Neighborhood Hous. Servs. of N.Y. 

New York Civil Law will keep you apprised of the Court's decision.

Homeowner's Exemption to Labor Law secs. 240(1) and 241(6) Garners Rare Split Decision at New York Court of Appeals

In a rare 4-3 decision within the Labor Law context, the New York Court of Appeals in Affri v. Basch recently held that the homeowner's exemption to Labor Law secs. 240(1) and 241(6) applied to the defendants homeowners.  The defendants hired the plaintiff, a neighbor, to perform renovations to an apartment within their home.  The work included the installation of appliances.  The plaintiff fell from a ladder while installing a vent on the roof and sustained injuries.

The focus of the appeal was whether the defendants' participation in the renovation was sufficient enough to take them out of the exemption's protection.  The evidence on summary judgment demonstrated that the defendants instructed the plaintiff to place an appliance vent on the roof and not in a window.  Was this enough to constitute direction and control?

The Majority held that the defendants merely gave instruction on aesthetics, noting that they "did nothing more than what any ordinary homeowner would do in deciding how they wanted the home to look upon completion."  The Court also noted that the defendants did not provide the plaintiff with any equipment or materials, and they were not present at the worksite when the plaintiff undertook the venting work.

In his dissent, Chief Judge Lippman (with Judges Ciparick and Jones joining), stated that the plaintiff, at the very least, raised an issue of fact as to whether the defendants were directing and controlling his work.  Judge Lippman noted that the evidence could be viewed that the defendants' conduct was more extensive than expected of the typical homeowners renovating their homes.  He pointed to several instructions about how the defendants wanted the work to be conducted.

The 4-3 split on a Labor Law question is out-of-the-ordinary.  Is it a sign of things to come under Chief Judge Lippman's tenure?