INTRODUCTION TO THE “SCAFFOLD LAW” ROUNDUP
Section 240(1) of New York’s Labor law is known as its “Scaffold” Law. It is unique among Labor Laws in requiring a finding of strict liability against Owners and General contractors who run afoul of its provisions. Under the Scaffold Law, a worker’s own negligence which contributes in part, or nearly entirely, to his accident, counts for nothing. Even if the Owner or General Contractor did nothing wrong and had no knowledge of the condition which caused Plaintiff’s injuries, they may be held strictly liable under the Scaffold Law. It reads, in pertinent part:
All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.
The law operates in practicality as a form of insurance for workers at job sites, (although the Court’s bristle at this characterization). While New York Labor Law Section 240(1) is informally called the “Scaffold” law, it might as easily be called the “Gravity” law since its stated objective is to protect workers from the risks of falling themselves or of falling objects, risks which the Court’s call “elevation-related risks”.
INTERPRETATION AND EFFECT
New York Court’s interpret the Scaffold Law’s intent this way “Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents,” it is “to be liberally construed to achieve this purpose”, and it “impos(es) a non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, with liability attaching where violation of that duty proximately causes injuries.”
THE LAST 100 APPELLATE DIVISION DECISION AND THIS OUTLINE
New York Appellate Courts hand down a hundred or more Scaffold Law decisions a year. Given the complexity of modern construction practices and business relationships, it is not surprising that whether or not a Defendant is exposed to finding of liability under the Scaffold Law can be difficult to predict. A number of arcane rules and nuanced interpretations have grown up around the Scaffold Law, and decisions frequently rest on some pretty fine splitting of hairs.
This course examines the last hundred Scaffold Law decisions handed down by the Appellate Courts, and is organized to provide a framework that can help predict whether or not a case on your desk will result in a finding of liability against your Defendant pursuant to New York’s Scaffold Law.
When the last hundred Appellate Division Scaffold Law decisions are analyzed, it is seen that over ninety percent of them turn on the same six issues, and add up to the questions of Who am I? What was the Plaintiff doing? What exactly went wrong? Do I have another way out? The issues these cases turned on are these:
Ownership or Authority: Was the Defendant the kind of entity responsible under the Scaffold Law, such as a Deed owner or, as is frequently litigated, a company with or without authority to control the work at the jobsite.
Activity: Was the Plaintiff was engaged in an Activity protected by the Scaffold Law, such as Demolition, or, as is frequently litigated Repairs or Commercial Cleaning as opposed to Routine Maintenance.
Hazard: Was the accident the Plaintiff suffered the kind of Hazard protected by the Scaffold Law, such as an accident involving a Falling Object and, as is frequently litigated, whether the nature of the accident involved a sufficient “Height Differential”.
Device: Did the accident happened because of the absence of one of the Devices anticipated by the Scaffold Law, or because of a Device’s inadequacy or even, as is frequently litigated in the case of Ladders which suddenly move, presumed inadequacy.
Causation: Was the Plaintiff’s own negligence the sole proximate cause of his accident, defeating a Scaffold Law claim, for instance in situations which are frequently litigated where he ignored specific safety instruction.
Indemnification: If a Defendant is Statutorily liable, will he be able to enforce an indemnification agreement against another entity down the line, arguing, as is frequently litigated, that whoever actually failed to provide the kind of protection required by the Scaffold Law has the kind of culpability that amounts to negligence in triggering standard indemnification agreements.
Frequent litigation in this area turns on the labels which Plaintiff’s try to paint Defendant’s with, arguing that the name “General Contractor” or “Construction Manager” add up to instant Scaffold Law Exposure. In fact, labels mean little.
The label given a defendant, whether “construction manager” or “general contractor,” is not determinative - core inquiry is whether defendant had the “authority to supervise or control the activity bringing about the injury so as to enable it to avoid or correct the unsafe condition” Construction manager lacked the requisite authority to control the activity which brought about worker's injury when he fell from an unsecured ladder while installing insulation in the ceiling of the home, Myles v. Claxton, 2014 WL 840645 (N.Y.A.D. 2 Dept., 2014)
Frequent litigation also involves the “Homeowners” exemption to Scaffold Law exposure in cases involving one or two family homes, where the rule is:
Labor Law § 240(1) and § 241(6) contain identical language exempting from the statutes owners of one and two-family dwellings who contract for but do not direct or control the work” This homeowner's exemption “was enacted to protect those who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against absolute liability” Pavon v. Koral 113 A.D.3d 830, 979 N.Y.S.2d 401, 2014 N.Y. Slip Op. 00491
Medina v. R.M. Resources107 A.D.3d 859, 968 N.Y.S.2d 533 (N.Y.A.D. 2 Dept.,2013) 54
Defendant established it was not an owner, contractor, statutory agent or with
authority to control work.
Morato–Rodriguez v. Riva Const. Group, Inc 2014 WL 814204 (N.Y.A.D. 1 Dept., 2014) 2
Status as a Tenant is not a shield to 240(1) if Tenant directed and controlled the
Pavon v. Koral 113 A.D.3d 830, 979 N.Y.S.2d 401, 2014 N.Y. Slip Op. 00491 11
Single Family Home owner who owned a Real Estate Development business may
may have exercised direction or control over renovations.
Thomas v. Benton 977 N.Y.S.2d 336, (N.Y.A.D. 2 Dept 2013) 20
Subcontractor established that it did not have authority to supervise or control the work involved in Plaintiff’s accident.
In re 91st Street Crane Collapse Litigation 112 A.D.3d 477, 976 N.Y.S.2d 376, (N.Y.A.D. 1 2013) 22
New York City established through deed transfer records that it was not a Record Owner
Youseff v. Malik 112 A.D.3d 617, 977 N.Y.S.2d 53 (N.Y.A.D. 2 Dept.,2013) 24
Single Family Homeowner was exempt from lialibty where he did not control or direct work.
Rodriguez v. Coalition for Father Duffy, LLC112 A.D.3d 407, 976 N.Y.S.2d 51, (N.Y.A.D. 1) 25
Lease or license from City gave gthe ticket stand defendant responsibility to supervise work necessary for its license creating exposure under New York’s Scaffold Law.
Ortega v. Liberty Holdings, LLC 111 A.D.3d 904, 976 N.Y.S.2d 147, (N.Y.A.D. 2 Dept.,2013) 29
Defendant established it was not a deed owner but did not establish a lack of occupancy, control or special use.
Bombard v. Pruiksma 110 A.D.3d 1304, 975 N.Y.S.2d 183 (N.Y.A.D. 3 Dept.,2013) 38
Homeowner Exception. Relevant inquiry is degree to which owner actually supervised method and manner of work.
Myles v. Claxton, 2014 WL 840645 (N.Y.A.D. 2 Dept., 2014) 1
Even though denoted a Construction Manager, this Defendant without authority to control the work involved in Plaintiff’s accident was not exposed under New York’s Labor Law.
Soho Plaza Corp. v. Birnbaum 108 A.D.3d 518, 969 N.Y.S.2d 96,(N.Y.A.D. 2 Dept.,2013) 52
Cooperative Corporations are exposed as New York Scaffold Law defendants for work being done in apartments that are part of the cooperative they own
Custer v. Jordan 107 A.D.3d 1555, 968 N.Y.S.2d 754, (N.Y.A.D. 4 Dept.,2013) 59
Out of Possession Vendor still retained title to Single family home before delivery
of deed and retained responsibility under New York’s Labor Law.
Mathews v. Bank of America 107 A.D.3d 495, 968 N.Y.S.2d 15, (N.Y.A.D. 1 Dept.,2013) 60
Air Testing Subcontractor did not have authority to supervise Asbestos removal work.
Alvarez v. Hudson Valley Realty Corp.107 A.D.3d 748, 966 N.Y.S.2d 686, (N.Y.A.D. 2 Dept.) 61
Ownership and Authority: Defendant demonstrated that it was an Abutting Owner without authority over work.
Westgate v. Broderick107 A.D.3d 1389, 967 N.Y.S.2d 285 (N.Y.A.D. 4 Dept.,2013) 63
Homeowner Exception. Not limited to Title Holder but also applies to person with
interest in the property
Mondone v. Lane 106 A.D.3d 1062, 966 N.Y.S.2d 164 (N.Y.A.D. 2 Dept.,2013) 65
Homeowners did not direct or control work but merely displayed typical homeowner interest.
Parise v. Green Chimneys Children's Services, Inc. 106 A.D.3d 970, 965 N.Y.S.2d 608 69
Residential home on commercial property served no business use and was thus
What work the Plaintiff was actually engaged in when his accident occurred is central to any analysis of a Scaffold Law Claim. Not all actives are Protected or “Covered” Activities.
A 240(1) Claimant must prove he was Permitted or suffered to work on a building or structure, hired by someone - owner, contractor or their agent to work at the site, and had been engaged in a “covered activity”. Section 240 is intended to place the ultimate responsibility for building practices on the owner and general contractor in order to protect the workers who are required to be there but who are scarcely in a position to protect themselves from accidents,” and it is to be liberally construed to achieve this purpose. Gallagher v. Resnick 107 A.D.3d 942, 968 N.Y.S.2d 151, (N.Y.A.D. 2 Dept.,2013)
A highly litigated question in this area concerns whether the activities a Plaintiff was engaged in were in fact Protected “Repair” or “Cleaning” activates, or unprotected activities constituting “Regular Maintenance” or routine.
There was insufficient evidence regarding whether the plaintiff's task was “routine, in the sense that it [was] the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises” Collymore v. 1895 WWA, LLC 978 N.Y.S.2d 367 (N.Y.A.D. 2 Dept.,2014)
Dos Santos v. Consolidated Edison 104 A.D.3d 606, 963 N.Y.S.2d 12 96
A factor in whether activity constitutes Maintenance vs. Repairs is whether the activity, here pumping out after a floor, was occasioned by an isolated event or recurring condition.
Amendola v. Rheedlen 125th Street, LLC, 105 A.D.3d 426, 963 N.Y.S.2d 30 (N.Y.A.D. 1 Dept. 2013) Hanging Window Shades does not amount to "altering" within the meaning of the Labor Law.
Bodtman v. Living Manor Love, Inc.105 A.D.3d 434, 963 N.Y.S.2d 35 (N.Y.A.D. 1 Dept.,2013.) Drilling holes to hang a "For Sale" sign only created minor changes was not an alteration as anticipated by the Scaffold Law
Vasquez v. C2 Development Corp.105 A.D.3d 729, 963 N.Y.S.2d 675 (N.Y.A.D. 2 Dept.,2013.) Moving Light Fixtures from one place to another did constitute a protected activity.
Konaz v. St. John's Preparatory School 105 A.D.3d 912, 963 N.Y.S.2d 337 (N.Y.A.D. 2 Dept., 2013) Replacing Fluorescent Light Ballasts is routine maintenance not a protected activity.
Probst v. 11 West 42 Realty Investors, LLC106 A.D.3d 711, 965 N.Y.S.2d 513 (N.Y.A.D. 2 2103) Commercial Window Cleaning is a protected activity.
Melski v. Fitzpatrick & Weller 107 A.D.3d 1447, 967 N.Y.S.2d 304, (N.Y.A.D. 4 Dept., 2013) Working on a boiler replacing components due to normal wear and that equals Maintenance vs. Repair and is not a Protected activity.
Gallagher v. Resnick 107 A.D.3d 942, 968 N.Y.S.2d 151, (N.Y.A.D. 2 Dept.,2013) 55
Climbing to take measurement is a Task Ancillary to construction work and is a Protected activity.
Hull v. Fieldpoint Community Ass'n, Inc 110 A.D.3d 961, 973 N.Y.S.2d 334 (N.Y.A.D. 2 2013) Cleaning Gutters was incidental to regular maintenance and thus not a Protected activity.
Sobenis v. Harridge House Associates of 1984 111 A.D.3d 917, 976 N.Y.S.2d 113 (N.Y.A.D. 2 2013) Annual Servicing of Air Conditioning System was Routine Maintenance and thus not a Protected activity.
Juett v. Lucente 112 A.D.3d 1136, 977 N.Y.S.2d 426 (N.Y.A.D. 3 Dept.,2013) 21
Removing Trees in Parking Lot was work ancillary to expanding a parking lot which did not constitute a building or structure, and so was not a Protected activity.
Collymore v. 1895 WWA, LLC 978 N.Y.S.2d 367 (N.Y.A.D. 2 Dept.,2014) 14
Activity: Labor Law The activity of "Cleaning" as anticipate by the Scaffold Law is not frequent recurring
and routine maintenance
Simon v. Granite Bldg. 2, LLC 2014 WL 553567 (N.Y.A.D. 2 Dept.) 7
Actiivity: The act of ariving at work, even if a protected activity was to be done there, is not itself a
DeJesus v. 888 Seventh Ave. LLC 2014 WL 700415 (N.Y.A.D. 1 Dept. 2014) 4
Activity: Caulking Operating a Scaffold for Caulkers engaged in a protected activity was necessary and ancillary to their work and thus itself a protected activity.
3 HAZARD AND RISK
Fundamentally the Scaffold Law is intended to address the risks of falling objects and falling workers.
The purpose of the scaffold law is to protect against such specific gravity-related accidents as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured. -the scaffold law applies when the falling of an object is related to a significant risk inherent in the relative elevation at which materials or loads must be positioned or secured. Flossos v. Waterside Redevelopment Co., L.P.108 A.D.3d 647, 970 N.Y.S.2d 51 (N.Y.A.D. 2 Dept.,2013)
Not every object that falls, however, creates a Scaffold Law claim. The law requires that the object be in the process of being hoisted or set in place, or that it should have been secured in place “for the purpose of the undertaking” often invoked when something comes crashing down during demolitions or repairs.
Not every object that falls on a worker gives rise to the extraordinary protections of Labor Law § 240(1) To recover, a plaintiff must show that, at the time the object fell, it was being hoisted or secured, or “required securing for the purposes of the undertaking”,And show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute” Maldonado v. AMMM Properties Co.107 A.D.3d 954, 968 N.Y.S.2d 163, (N.Y.A.D. 2 Dept.,2013)
The fall needs to be attributable to the failure or inadequacy of one of the Scaffold laws enumerated devices.
In a section 240(1) “falling object” case, worker must demonstrate that the object fell ... because of the absence or inadequacy of a safety device of the kind enumerated in the statute” Fabrizi v. 1095 Ave. of Americas, L.L.C., 2014 WL 641523 (N.Y.), 2014 N.Y.
A frequently litigated issue involves very heavy objects that fall or tip over from basically the same level the Worker is on. In such a case the requirement of a “height differential” gives way to an assessment of how much force the object could generate even traveling a short distance.
A differential “cannot be viewed as de minimis, (when) given the weight of the [wall] and the amount of force it was capable of generating, even over the course of a relatively short descent” Zarnoch v. Luckina112 A.D.3d 1336, 977 N.Y.S.2d 521, N.Y.A.D. 4 Dept 2013
Rodriguez v. DRLD Development, Corp.109 A.D.3d 409, 970 N.Y.S.2d 213, (N.Y.A.D. 1 2013) 47
Risk: Falling Object. Leaning Sheetrock. Height Differential Leaning against the wall and resting atop blocks of wood approximately two feet high, a sufficient height differential to implicate § 240(1)'s
Humphrey v. Park View Fifth Ave. Associates LLC 979 N.Y.S.2d 317, 2014 N.Y. Slip Op. 12
Risk: Falling Object : Beam fell from above from unknowns source. Height Differential not diminimus
Garcia v. Neighborhood Partnership 980 N.Y.S.2d 6 (N.Y.A.D. 1 Dept.,2014) 15
Risk: Collapse A plaintiff in a case involving collapse of a permanent structure must establish that the
collapse was “foreseeable”
Zarnoch v. Luckina112 A.D.3d 1336, 977 N.Y.S.2d 521, N.Y.A.D. 4 Dept 2013 18
Risk: Falling Object. Height Differential Exterior Wall being raised cannot be viewed as diminimus,
given the weight of the wall and the amount of force it was capable of generating
Risk: Falling Object. Roof Membrane falls only 1.5 fee but still a "significant elevation differential given
its substantial weight of between 600 and 800 pounds, and powerful force it generated when it fell"
Verdon v. Port Authority of New York 111 A.D.3d 580, 977 N.Y.S.2d 4 (N.Y.A.D. 1 31
Risk: Intervening Cause and Forseeability. it was foreseeable that skip box would strike wooden mid-rail
as it was hoisted by a crane and moved on and off the platform
Matthews v. 400 Fifth Realty LLC 111 A.D.3d 405, 974 N.Y.S.2d 370 (N.Y.A.D. 1 Dept.,2013) 34
Risk: Falling Object Secured for Purposes of Undertaking. Grates being set up for welding weres part of
work of construction project in which worker was engaged and was required to be secured for purposes of
Paredes v. 1668 Realty Associates, LLC110 A.D.3d 700, 972 N.Y.S.2d 304 (N.Y.A.D. 2 43
Risk: Falling Object: Lowered Bucket fell because of absence or inadequacy of safety device.
Fabrizi v. 1095 Ave. of Americas, L.L.C., 2014 WL 641523 (N.Y.), 2014 N.Y. 5
Falling Object A "Compression Coupling" that failed and caused a pipe to fall was not one of the
devices anticipated by the Labor Law.
Ross v. DD 11th Ave., LLC 109 A.D.3d 604, 971 N.Y.S.2d 304 (N.Y.A.D. 2 Dept.,2013) 46
Falling Object. Securing Concrete Forms preparoty to their removal should have been “Secured for Purposes of Undertaking” and would not have been “Contrary to Objectives of the Work”
Mercado v. Caithness Long Island LLC 104 A.D.3d 576, 961 N.Y.S.2d 424, (N.Y.A.D. 1 2013) 98
Falling Object. Should prevent falling tools with netting
Flossos v. Waterside Redevelopment Co., L.P.108 A.D.3d 647, 970 N.Y.S.2d 51 (N.Y.A.D. 2 2013) 49
Falling Object. A Piece of Ceiling that fell during painting was not an object that needed to be
Secured for Purpose of Undertaking
Maldonado v. AMMM Properties Co.107 A.D.3d 954, 968 N.Y.S.2d 163, (N.Y.A.D. 2 2013) 56
Falling Object. Glass Pane that was part of structure being demolished was not object that need to be
Secured for purpose of undertaking
Saber v. 69th Tenants Corp.107 A.D.3d 873, 968 N.Y.S.2d 103, N.Y.A.D. 2 Dept.,2013) 57
Falling Object. A mirror that fell while being removed, (not demolished) may have been an object
that should have been Secured for purpose of undertaking
Carey v. Five Bros., Inc. 106 A.D.3d 938, 966 N.Y.S.2d 153, 2013 N.Y. (N.Y.A.D. 2 2013) 66
Risk: Falling Worker. Falling through penetration of a partially open manhole was not a Scaffold Law risk
Moncayo v. Curtis Partition Corp.106 A.D.3d 963, 965 N.Y.S.2d 593 (N.Y.A.D. 2 2013) 67
Risk: Falling Objects. Bagged Debris were not in the process of being hoisted or secured
Marrero v. 2075 Holding Co. LLC 106 A.D.3d 408, 964 N.Y.S.2d 144 (N.Y.A.D. 1 D 2013)
Risk. Falling Objects. Height Differential. Tipping of A Cart cart containing drywall and two 500–pound
steel beams to tip over and fall on his calf and ankle was a protected height differential
Restrepo v. Yonkers Racing Corp., Inc.105 A.D.3d 540, 964 N.Y.S.2d 17 (N.Y.A.D. 1 2013) 88
Risk.: Collapse and Falling worker. Forseability It was foreseeable that the door, which was not intended for use as a floor, but instead intended only to enable one to reach up from the floor below, would fail when traversed upon by plaintiff.
It is often overlooked in Scaffold Law claims, frequently by the Courts themselves, that liability under this law should be dependent on a showing that a specific device, a Scaffold, a Stay, a Lift or a Ladder, was absent or inadequate and thus one of the causes of the accident.
Liability involving falling objects is dependent on whether worker's task creates an elevation-related risk of the kind that the safety devices listed the statute protect against; that is, protection does not encompass all perils connected in some tangential way with the effects of gravity, but to accidents in which the protective device has proved inadequate to shield the worker from harm directly flowing from the application of the force of gravity to an object or person Mohamed v. City of Watervliet 106 A.D.3d 1244, 965 N.Y.S.2d 637 (N.Y.A.D. 3 Dept.,2013)
Contemplated hazards covered by scaffold law are those related to effects of gravity where protective devices are called for either because of a difference between elevation level of required work and a lower level or difference between elevation level at which worker is positioned and higher level of materials or load being hoisted or secured Nicometi v. Vineyards of Fredonia, LLC 107 A.D.3d 1537, 967 N.Y.S.2d 563 N.Y.A.D. 4 Dept.,2013.
A highly litigated issue in this area concerns accidents that happen when a worker falls from a ladder. In truth the rule itself is simple. If the only reasons the worker fell is because he lost his balance, it is not a Scaffold Law claim, if, however, he fell because the ladder suddenly moved then presumptively the ladder itself was inadequately erected or secured.
When a plaintiff falls off the ladder because he or she lost his or her balance, and there is no evidence that the ladder from which the plaintiff fell was defective or inadequate, liability pursuant to the scaffold law does not attach; to impose liability under such circumstances would make a defendant an insurer of the workplace, a result which the Legislature never intended in enacting the scaffold law Hugo v. Sarantakos 108 A.D.3d 744, 970 N.Y.S.2d 245 (N.Y.A.D. 2 Dept.,2013)
Nicometi v. Vineyards of Fredonia, LLC 107 A.D.3d 1537, 967 N.Y.S.2d 563 N.Y.A.D. 4 58
Dept.,2013. Device: Stilts. Question of Workers Neligence in slip on ice in Stilts.
Gory v. Neighborhood Partnership Housing 979 N.Y.S.2d 314, 2014 N.Y. Slip Op. 00457 13
Device Scaffold Equivalent. Stairway stripped of walls during demolition.
Singh v. City of New York 977 N.Y.S.2d 914,N.Y.A.D. 2 Dept 16
Device: Ladder triable issues of fact as to whether the subject ladder was inadequately secured and whether the injured plaintiff's actions were the sole proximate cause of the accident Causation. Workers Negligence
Portes v. New York State Thruway Authority 112 A.D.3d 1049, 976 N.Y.S.2d 232, (N.Y.A.D. 23
3 Dept.,2013) Device: Suspension Cable. Workman's Negligence still not shown inspite of instruction not to walk on.
Carrion v. City of New York 111 A.D.3d 872, 976 N.Y.S.2d 126 (N.Y.A.D. 2 Dept.,2013) 27
Device: Ladder Placed atop tipping scaffold is a Labor Law claim.
Hai–Zhong Pang v. LNK Best 111 A.D.3d 889, 976 N.Y.S.2d 139, (N.Y.A.D. 2 Dept.,2013) 28
Device: Ladder Tipping Ladder is a Labor Law Claim
Hoffman v. SJP TS, LLC 111 A.D.3d 467, 974 N.Y.S.2d 450 (N.Y.A.D. 1 Dept.,2013) 32
Device: Scissor Lift was inadequate when it left a 3 foot gap after being positioned.
Mutadir v. 80-90 Maiden Lane Del LLC 110 A.D.3d 641, 974 N.Y.S.2d 364 (N.Y.A.D. 1 35
Device: Makeshift Ladder Causation. Workers Negligence not established where knowledge of
available ladders not shown.
Palacios v. 29th Street Apts, LLC 110 A.D.3d 698, 972 N.Y.S.2d 615 (N.Y.A.D. 2 Dept.,2013) 42
Device: Fire Escape being used as short cut not a Labor Law Safety Device.
Hugo v. Sarantakos108 A.D.3d 744, 970 N.Y.S.2d 245 (N.Y.A.D. 2 Dept.,2013) 48
Device: Ladder. Not a Labor Law Case if Plaintiff merely loses his balance.
Degen v. Uniondale Union Free School Dist. 2014 WL 623931 (N.Y.A.D. 2 Dept.), 6
Device: Ladder Not a Labor Law Case if Plaintiff merely loses his balance.
Mayo v. Metropolitan Opera Ass'n 108 A.D.3d 422, 969 N.Y.S.2d 39, (N.Y.A.D. 1 Dept., 53
Device: Fixed Ladder. Inadequate where Plaintiff had to use both hands to open hatch breaking "Three
Point Contact". Hatch.
DelRosario v. United Nations Federal Credit Union 104 A.D.3d 515, 961 N.Y.S.2d 389, 103
(N.Y.A.D. 1 Dept.,2013)
Device. Ladder. Hit by live wire is a Scaffold Law Claim.
Keenan v. Simon Property Group, Inc 106 A.D.3d 586, 966 N.Y.S.2d 378, (N.Y.A.D. 1 68
Device; Ladder Defective Steps cause loss of balance
Mouta v. Essex Market Development LLC106 A.D.3d 549, 966 N.Y.S.2d 13, (N.Y.A.D. 1 70
Device: Scaffold defective when plywood platform being dismantled from below. Causation. Conflicting
Proof on Workers Negligence
Fanning v. Rockefeller University 106 A.D.3d 484, 964 N.Y.S.2d 525 (N.Y.A.D. 1 Dept.,2013) 74
Device: Ladder If Ladder Suddenly moves, it is a Labor Law claim.
Mohamed v. City of Watervliet 106 A.D.3d 1244, 965 N.Y.S.2d 637 (N.Y.A.D. 3 Dept.,2013) 75
Device: Backhoe Bucket. Lowering because it was activiated by joystick not a Scaffold Law Claim
because not gravity related. Risk: Object Activated Mechanically
Ross v. 1510 Associates LLC 106 A.D.3d 471, 964 N.Y.S.2d 514 (N.Y.A.D. 1 Dept.,2013) 76
Device: Ladder. Uneven Floor.
Ramirez v. Metropolitan Transp. Authority 106 A.D.3d 799, 965 N.Y.S.2d 156 (N.Y.A.D. 2 77
Device. Scaffold. A breaking plank on a Catwalk, which is a scaffold functional equivalent, is a labor law
Smith v. Nestle Purina Petcare Co.105 A.D.3d 1384, 966 N.Y.S.2d 292 (N.Y.A.D. 4 83
Device. Ladder. Stepping off onto Risk. Debris not a Scaffold Law claim
Vail v. 1333 Broadway Associates, L.L.C. 105 A.D.3d 636, 963 N.Y.S.2d 647 (N.Y.A.D. 1 84
Device: Baker's Scaffold inadequate when shiting and without guardrails. Workers Negligence. Failure
to Hydarate Indemnification. Purchase Order Not Retroactive
Estrella v. GIT Industries, Inc. 105 A.D.3d 555, 963 N.Y.S.2d 110, (N.Y.A.D. 1 Dept.,2013) 87
Device: Ladde. A Ladder that suddenly moves is a Labor Law claim.
Esteves–Rivas v. W2001Z/15CPW Realty, LLC 104 A.D.3d 802, 961 N.Y.S.2d 497 (N.Y.A.D. 2 102
Device. Ladder. If only reason for accident is that the Worker lost his balance it is not a Labor Law Claim
Bellreng v. Sicoli & Massaro, Inc.108 A.D.3d 1027, 969 N.Y.S.2d 629, (N.Y.A.D. 4 51
Device: Roof not Scaffold Equivalent Causation. Workers possibly Negligent in Ignoring Lifelines
5. CAUSATION: Worker Negligence as Sole Proximate Cause
Under New York’s Scaffold Law, a Workers Contributory Negligence is not a Defense, per se, nor will an apportionment of liability be made upon a finding of Negligence. The exception is in situations where the Workers own Negligence was the “Sole Proximate Cause” of his accident. This exception is frequently referred to as the Recalcitrant Worker rule, given the number of cases which involve Workers expressly ignoring safety instructions and refusing to use Safety Devices.
Decedent “alone defined the task at hand, chose the methods and means to be used,” and made the decisions that led to the accident. Kerrigan v. TDX Const. Corp.108 A.D.3d 468, 970 N.Y.S.2d 13, (N.Y.A.D. 1 Dept.,2013)
A plaintiff's negligent conduct in failing to use an available and adequate safety device which is the sole proximate cause of the accident will relieve a defendant of liability. Cioffi v. Target Corp, 2014 WL 715169 (N.Y.A.D. 2 Dept. 2014)
Scaffold Law, imposes non-delegable duty upon owners and general contractors to provide safety devices to protect workers from elevation-related risks, liability attaches where violation of that duty proximately causes injuries; conversely, where plaintiff's own actions are the sole proximate cause of the accident or injury, no liability attaches under statute and where plaintiff has adequate safety device readily available that would have prevented accident, and for no good reason chooses not to use it, statute does not apply Barreto v. Metropolitan Transp. Authority 110 A.D.3d 630, 973 N.Y.S.2d 636 (N.Y.A.D. 1 Dept.,2013)
Thompson v. Sithe/Independence, LLC 107 A.D.3d 1385, 967 N.Y.S.2d 279, (N.Y.A.D. 4 Dept., 62
2013) Causation:Worker's Negligence. Conflicting evidence on device availability. Device. Lift and Safety lines
Gould v. E.E. Austin & Son, Inc. 980 N.Y.S.2d 198 (N.Y.A.D. 4 Dept., 2014) 8
Causation: Proximate Cause. Question of whether injuries related.
Rauls v. DirecTV, Inc. 113 A.D.3d 1097, 977 N.Y.S.2d 864, N.Y.A.D. 4 Dept.,2014 17
Causation: Workers Negligence Stepping out in violation of instructions. Ownership. Contractor.
Satelite TV Company
Barreto v. Metropolitan Transp. Authority 110 A.D.3d 630, 973 N.Y.S.2d 636 (N.Y.A.D. 1 36
Causation:Workers Negligence. Present when worker disregarded supervisor's instruction.
Gove v. Pavarini McGovern, LLC 110 A.D.3d 601, 973 N.Y.S.2d 617 (N.Y.A.D. 1 Dept.,2013) 37
Causation:Workers Negligence. Not present when foreman directs the manner of performance.
Dias v. City of New York 110 A.D.3d 577, 973 N.Y.S.2d 210 (N.Y.A.D. 1 Dept.,2013) 39
Causation: Workers Negligence. Contrary to Purpose of Work Device. Metal Sheeting
Cioffi v. Target Corp, 2014 WL 715169 (N.Y.A.D. 2 Dept. 2014) 3
Causation:Workers Negligence. Not present when worker chooses ladder at his discretion.
Kerrigan v. TDX Const. Corp.108 A.D.3d 468, 970 N.Y.S.2d 13, (N.Y.A.D. 1 Dept.,2013) 50
Causation: Workers Negligence Sole Proximate Cause. "Decedent alone defined"
Clavijo v. Atlas Terminals, LLC 104 A.D.3d 475, 961 N.Y.S.2d 113 (N.Y.A.D. 1 Dept.,2013) 104
Causation. Workers Negligence. Need proof of knowledge of safety devices
If a Defendant is Statutorily liable, will he be able to enforce an indemnification agreement against another entity down the line, arguing, as is frequently litigated, that whoever actually failed to provide the kind of protection required by the Scaffold Law has the kind of culpability that amounts to negligence in triggering standard indemnification agreements.
Marlite's lease obligated it to indemnify Atlas for any losses resulting from its (Marlite's) breach of any covenant or condition of the lease or from any carelessness, negligence or improper conduct on its part. This indemnification obligation is triggered by Marlite's sending plaintiff to work on a mezzanine under construction on which the floor beams were only partially covered, some with ceiling tiles, without safety equipment. Clavijo v. Atlas Terminals, LLC 104 A.D.3d 475, 961 N.Y.S.2d 113 (N.Y.A.D. 1 Dept.,2013)
A court may render a conditional judgment on the issue of contractual indemnity, pending determination of the primary action, the one seeking indemnity need only establish that it was free from any negligence and may be held liable solely by virtue of statutory or vicarious liability. Van Nostrand v. Race & Rally Const. Co., Inc. 979 N.Y.S.2d 638 (N.Y.A.D. 2 Dept.,2014)
Clavijo v. Atlas Terminals, LLC 104 A.D.3d 475, 961 N.Y.S.2d 113 (N.Y.A.D. 1 Dept.,2013) 105
Indemnification. 240(1) violation equals fault sufficient to trigger indemnification obligation
Town of Amherst v. Hilger 106 A.D.3d 120, 962 N.Y.S.2d 837 (N.Y.A.D. 4 Dept.,2013) 99
Indemnification. Stgate Insurance Fund is exempt from certain direct actions.
Britez v. Madison Park Owner, LLC 106 A.D.3d 531, 966 N.Y.S.2d 7 (N.Y.A.D. 1 Dept.,2013) 71
Indemnification. Subcontractors scope of work in failing to provide safety device.
Van Nostrand v. Race & Rally Const. Co., Inc. 979 N.Y.S.2d 638 (N.Y.A.D. 2 Dept.,2014) 9
Indemnification Ownership Subcontractor
THE TWELVE MOST RECENT NEW YORK LABOR LAW DECISIONS OF THE FIRST AND SECOND DEPARTMENT
Toussaint v. Port Authority of New York Supreme Court, Appellate Division, First Department, New York. May 30, 2019--- N.Y.S.3d ----2019 WL 22916072019 N.Y. Slip Op. 04302
Plaintiff was injured when he was struck in the back by a power buggy after an operating engineer on the construction site attempted to move the buggy….According to plaintiff, the operating engineer was a watchman on another side of the construction site. It is undisputed that the operating engineer was not designated to operate the power buggy.
12 NYCRR 23–9.9(a) states: “Assigned operator. No person other than a trained and competent operator designated by the employer shall operate a power buggy.” The term “designated person” is defined in 12 NYCRR 23–1.4(b)(17) as “[a] person selected and directed by an employer or his authorized agent to perform a specific task or duty.”
We have held that similarly worded provisions of the Industrial Code are sufficiently specific to support a Labor Law § 241(6) claim. In Medina v. 42nd & 10th Assoc., LLC, 129 A.D.3d 610, 611, 12 N.Y.S.3d 68 (1st Dept. 2015), we found Industrial Code (12 NYCRR) § 23–5.1(h), which provides that “[e]very scaffold shall be erected and removed under the supervision of a designated person,” and section 23–5.8(c)(1), which provides that “[t]he installation or horizontal change in position of every suspended scaffold shall be in charge of and under the direct supervision of a designated person,” sufficiently specific.
Martinez-Gonzalez v. 56 West 75th Street, LLC Supreme Court, Appellate Division, First Department, New York. May 28, 2019--- N.Y.S.3d ----2019 WL 22611552019 N.Y. Slip Op. 04111
Plaintiff was injured in a fall from a scaffold. It is undisputed that the scaffold he was supplied with and directed to use lacked railings, and that he fell off when the scaffold tipped as one wheel broke through the floor on which it was standing. Plaintiff was not provided with any other safety devices. This evidence establishes prima facie a violation of Labor Law § 240(1) Plaintiff was not required to show that the scaffold was defective.
Pearl, plaintiff's employer, which was hired to do sheetrocking and taping work at the job site, signed an agreement in connection with the renovation work, which clearly and unambiguously obligated it to defend and indemnify 56 West and Brusco for any personal injury claims resulting therefrom. 56 West and Brusco had no involvement in plaintiff's work, and their liability to plaintiff was strictly vicarious. Under these circumstances, defendants are entitled to contractual indemnification by Pearl.
Colon v. Third Avenue Open MRI, Inc. Supreme Court, Appellate Division, First Department, New York.May 28, 2019--- N.Y.S.3d ----2019 WL 2261200 (Mem) 2019 N.Y. Slip Op. 04107
Plaintiff, who occasionally worked as a handyman for defendants, was injured when he fell from a six-foot A-frame ladder which he was climbing to fix a leak from the ceiling in defendant's x-ray room. Plaintiff surmised that the leak was coming from the joint of a cast iron drain pipe in the ceiling, and that he could tighten the clamps with a screwdriver that he had on his person. Defendant's principal testified that the leak eventually stopped on its own, and he ultimately learned that the source of the leak was a spill from the apartment above, and not an issue with the plumbing system at all. Under these circumstances, the motion court correctly found that plaintiff was engaged in routine maintenance, rather than “repairing,” and, therefore, that defendants cannot be held liable for his injury under Labor Law § 240(1) (see Abbatiello v. Lancaster Studio Assoc., 3 N.Y.3d 46, 53, 781 N.Y.S.2d 477, 814 N.E.2d 784 ; Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 770 N.Y.S.2d 682, 802 N.E.2d 1080 ; cf. Soriano v. St. Mary's Indian Orthodox Church of Rockland, Inc., 118 A.D.3d 524, 526–527, 988 N.Y.S.2d 58 [1st Dept. 2014] ).
Clark v. FC Yonkers Associates, LLC Supreme Court, Appellate Division, Second Department, New York. May 22, 2019--- N.Y.S.3d ----2019 WL 2202533 (Mem)2019 N.Y. Slip Op. 03948
The plaintiff Jonathan Clark was a construction supervisor employed by IBEX Construction Company, LLC, a general contractor hired for the “fit[ting]-out” of a retail space in a shopping center under construction. The plaintiff allegedly was injured when he suffered a herniation in his neck as he attempted to throw a hose onto an area located 15 to 20 feet above him to provide a water supply required for the fireproofing of the retail space.
The defendants established their prima facie entitlement to judgment (as to) Labor Law § 200 by demonstrating that the accident at issue was the result of the means and methods of the plaintiff's work, that the plaintiff's work was directed and controlled by his employer, and that the defendants had no authority to exercise control over his work.
Labor Law § 240(1) imposes strict liability on building owners and contractors for failure to provide proper protection against elevation-related hazards (see Runner v. New York Stock Exchange, 13 N.Y.3d 599, 603, 895 N.Y.S.2d 279, 922 N.E.2d 865). At the time that the plaintiff was injured, he was standing on the ground level, moving a 100–pound hose. Although the accident tangentially involved elevation, it was not caused by any elevation-related risk contemplated by the statute.
Hernandez v. 601 West Associates Supreme Court, Appellate Division, First Department, New York. May 21, 201998 N.Y.S.3d 744 (Mem)2019 N.Y. Slip Op. 03911
Plaintiff seeks damages for injuries he sustained when a refrigerator he was pushing up the stairs from the basement of a restaurant fell on him after the rope that tied the refrigerator to a hand-truck being pulled up by another individual broke. Notwithstanding the work being performed in other parts of the premises, and contrary to his own characterization of his work as demolition, plaintiff, whose task was to remove debris and garbage, including the refrigerator, from the basement, was not engaged in an activity protected by Labor Law § 240(1) or 241(6) at the time of his accident.
Bellucia v. CF 620 Supreme Court, Appellate Division, First Department, New York. May 16, 2019--- N.Y.S.3d ----2019 WL 21275022019 N.Y. Slip Op. 03884
This action arises out of an accident in which a manually operated freight elevator in a building undergoing construction dropped suddenly from the fourth floor to the basement while carrying plaintiff Joseph Marandola, and (22) other individuals working on the project, causing injuries.
Robinson Elevator had recently serviced the elevator for conditions implicated in the accident. ..a broken switch/spring inside the elevator control handle and improperly installed brakes Robinson Elevator had purportedly …. performed modifications to the brake system in the weeks preceding the accident. Just over a week before the accident, CF620 had emailed Robinson Elevator, informing it that the elevator car had fallen and requesting service. Robinson Elevator serviced the elevator and told CF620 that the free fall had been caused by operator error. (I)ssues of fact as to Robinson Elevator's negligence preclude summary judgment (.
(As to) Schindler Elevator … factual issues exist as to whether, pursuant to its service contract, Schindler properly serviced the governor, a device that detects and arrests dangerous elevator speeds, and whether it properly serviced the switch/spring inside the elevator control handle.
CF620 also established that Supreme Court erroneously granted summary judgment to the Marandola plaintiffs and to the other plaintiffs who moved for summary judgment with respect to Labor Law § 241(6) predicated on CF620's violation of 12 NYCRR 23–1.7(f), (Protection from General Hazards: (f) Vertical passage. Stairways, ramps or runways shall be provided …)
and erroneously granted the Fund's and Henegan's motions for summary judgment with respect to indemnification against CF620. Issues of fact exist as to whether CF620 was negligent and whether any such negligence was a proximate cause of the accident.
Turgeon v. Vassar College Supreme Court, Appellate Division, Second Department, New York.May 15, 2019--- N.Y.S.3d ----2019 WL 21123612019 N.Y. Slip Op. 03838
“Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work…Cases involving Labor Law § 200 fall into two broad categories… those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed” (
Where “a claim arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation”
A defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed” …M]ere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200”
Urquiza v. Park and 76th St., Inc. Supreme Court, Appellate Division, First Department, New York.May 14, 2019--- N.Y.S.3d ----2019 WL 20922152019 N.Y. Slip Op. 03744
The homeowners' exemption to liability under Labor Law §§ 240(1) and 241(6) is clearly applicable here where defendant owners Edmund and Mary Carpenter did not direct or control the work in their cooperative apartment that they intended to use for personal use …Although defendant owners failed to plead the homeowners' exemption as an affirmative defense, Supreme Court should have granted their motion for summary judgment dismissing the complaint “since plaintiff was not surprised by the defense, and fully opposed the motion”
Decedent's action in standing on the radiator casing in front of the open window to accomplish his work was not the sole proximate cause of his accident as he was not provided proper safety devices for working next to the open window
Insofar as predicated Industrial Code § 23–1.7(d), issues of fact exist as to whether a slippery condition existed in violation of that Industrial Code provision where decedent was working while standing on an unsecured plywood board atop the radiator casing next to an open window during a rainstorm
With regard to plaintiffs' Labor Law §§ 200 and common law negligence claims against Nordic and Nordic's claim for common law indemnification against decedent's employer, issues of fact exist as to whether Nordic's site supervisor directed that the work be performed .. without the authorization of decedent's employer and whether Nordic's site supervisor was an independent contractor for whose acts it is not liable.
Djuric v. City of New York Supreme Court, Appellate Division, First Department, New York.May 7, 2019--- N.Y.S.3d ----2019 WL 19969812019 N.Y. Slip Op. 03538
Worker brought action against premises owner, general contractor, and others, alleging labor law violations and claims for common law negligence, for injuries he allegedly suffered when pipe saddle detached from overhead ceiling pipe assembly and struck him.
The motion court correctly found that Labor Law § 240(1) was inapplicable here, because the pipe saddle that detached from an overhead ceiling pipe assembly and struck plaintiff was not an object that required securing for the purposes of the undertaking; rather it was a permanent part of the structure.
Similarly, plaintiffs' Labor Law § 241(6) claim was correctly dismissed, since neither of the pleaded violations of the Industrial Code apply. 12 NYCRR 23–1.7(a)(1) is inapplicable here, because plaintiff was not injured by debris that may have been falling from a ceiling demolition, but instead, from a fixture of the building which dislodged 12 NYCRR 23–3.2(b) is also inapplicable because it pertains to protecting the stability of adjacent structures, not the stability of the building or structure allegedly being demolished.
Tropea v. Tishman Construction Corp. Supreme Court, Appellate Division, First Department, New York.May 7, 2019--- N.Y.S.3d ----2019 WL 19969972019 N.Y. Slip Op. 03533
The cable tray that fell on plaintiff's head from atop two ladders was an object that required securing to prevent it from falling. The distance the tray fell was not de minimis and “the harm to plaintiff was the direct consequence of the application of the force of gravity” upon the unsecured cable tray. Moreover, securing the cable tray against falling would not have been contrary to the purpose of the work.
Supreme Court correctly concluded that USIS Systems was liable under Labor Law § 240(1) as an agent of the owner … the terms of the subcontract by which USIS Systems subcontracted the work to USIS Electric demonstrate that USIS Systems had been delegated authority to direct and control the work Moreover as premises lessee which contracted for the work, AECOM was an owner within the meaning of Labor Law § 240(1)
DeMercurio v. 605 West 42nd Owner LLC Supreme Court, Appellate Division, First Department, New York.May 7, 2019--- N.Y.S.3d ----2019 WL 19969152019 N.Y. Slip Op. 03550
Plaintiff allegedly slipped and fell on protective brown paper that had been installed on the floor of an apartment unit under construction…torn, dirty, and not properly taped to the walls… the paper was slippery because it was on top of a cleaning agent called “green dust,”
The motion court improperly dismissed plaintiff's Labor Law § 241(6) claim predicated on Industrial Code (12 NYCRR) § 23–1.7(d). The alleged presence of green dust on the floor created a triable issue as to whether a “foreign substance” created a slippery condition on the floor, in violation of this Code section.
Plaintiff's Labor Law § 200 and common-law negligence claims should not have analyzed under the manner and means standard, but should instead have applied the dangerous condition standard (The green dust was a dangerous condition that existed prior to plaintiff's arrival at the job site it was not part of the work plaintiff was performing As such, there are triable issues of fact as to whether the general contractor, defendant Tishman Construction Corporation had notice of the hazardous condition of the floor… owner 605 West 42nd Owner LLC failed to demonstrate the absence of actual or constructive notice of the hazardous condition on its part, since it failed to point to any probative evidence on this issue
Cutaia v. Board of Managers of 160/170 Varick Street Condominium Supreme Court, Appellate Division, First Department, New York.May 2, 2019--- N.Y.S.3d ----2019 WL 19386892019 N.Y. Slip Op. 03458
The purpose of section 240(1) is to protect the worker from worksite injuries attributable to gravity-related risks. “It is sufficient for purposes of liability under section 240(1) that adequate safety devices to prevent the ladder from slipping or to protect plaintiff from falling were absent” (Orellano v. 29 E. 37th St. Realty Corp., 292 A.D.2d 289, 291, 740 N.Y.S.2d 16 [1st Dept. 2002]
The “safety device” provided to plaintiff was an unsecured and unsupported A-frame ladder that was inadequate to perform the assigned task. The ladder could not be opened or locked while plaintiff was performing his task, and the only way plaintiff could gain access to his work area on the ceiling at the end of the room was by folding up the ladder and leaning it against the wall. It is undisputed that the ladder was not anchored to the floor or wall. There were no other safety devices provided to plaintiff. Plaintiff's expert opined that had the ladder been supported or secured to the floor or wall by anchoring, it would have remained stable when plaintiff was shocked. He further opined that given the nature of plaintiff's work, which involved cutting pipes and the use of hand tools at an elevated height, plaintiff should have been furnished with a more stable device such as a Baker scaffold or a man lift. It is well settled that the failure to properly secure a ladder and to ensure that it remain steady and erect is precisely the foreseeable elevation-related risk against which section 240(1) was designed to protect
The fact that the fall was precipitated by an electric shock does not change this fact. This case is distinguishable from Nazario v. 222 Broadway, LLC, 28 N.Y.3d 1054, 43 N.Y.S.3d 251, 65 N.E.3d 1286 (2016), relied on by the dissent. The plaintiff in Nazario fell while “holding the ladder, which remained in an open locked position when it landed” (135 A.D.3d 506, 507, 23 N.Y.S.3d 192 [1st Dept. 2016] ). Thus, there was no evidence that the ladder was defective or that another safety device was needed. Here, on the other hand, it is undisputed that the ladder provided was not fully open and locked, nor was it otherwise secured, as plaintiff's expert opined it ought to have been.