Commercial tenants / Sublessors are responsible entities under the Labor Law

Pursuant to binding Court of Appeals precedents, as well as Appellate Division, First and Second Department precedents, commercial tenants/sublessors are responsible entities for purposes of Labor Law Section 240(1).

See Glielmi v. Toys “R” Us, Inc., 62 N.Y.2d 664, 666, 476 N.Y.S.2d 283, 284, 464 N.E.2d 981, 982 (1984) (“The jury was charged that the owner trustees and the tenant were to be considered a single unit for purposes of determining liability to the injured plaintiff. There was evidence from which the jury could properly have found that both were absolutely liable under subdivision 1 of section 240 of the Labor Law”); Godoy v. Baisley Lumber Corp., 40 A.D.3d 920, 921, 837 N.Y.S.2d 682, 683- 684 (2d Dep’t 2007); Murphy v. Sawmill Construction Corp., 17 A.D.3d 422, 424, 792 N.Y.S.2d 616, 618 (2d Dep’t 2005) (“We note that the term ‘owner,’ for purposes of Labor Law §§ 240(1) and 241(6), has been construed to include not only property owners but, under certain circumstances, also those who have an interest in property, such as easement holders and lessees (see Kane v. Coundorous, 293 A.D.2d 309, 739 N.Y.S.2d 711;  Copertino v. Ward, 100 A.D.2d 565, 473 N.Y.S.2d 494).”); Bell v. Bengomo Realty, Inc., 36 A.D.3d 479, 480, 829 N.Y.S.2d 42, 44 (1st Dep’t 2007) (“Summary judgment in favor of plaintiff on the issue of liability under Labor Law Section 240 (1) should have been granted as against Bengomo Realty as the owner of the property); see Coleman v. City of New York, 91 N.Y.2d 821, 822-823, 666 N.Y.S.2d 553, 689 N.E.2d 523 [1997]; Spagnuolo v. Port Auth. of N.Y. & N.J., 8 A.D.3d 64, 778 N.Y.S.2d 23 [2004] ), and Willow Media who, as lessee, contracted for the work (see Guzman v. L.M.P. Realty Corp., 262 A.D.2d 99, 691 N.Y.S.2d 483 [1999] ).”); Meade v. Rock-McGraw, Inc., 307 A.D.2d 156, 158-159, 760 N.Y.S.2d 39, 41-42 (1st Dep’t 2003) (“After discovery, plaintiff moved for summary judgment against defendants, Rock-McGraw, Inc., the building owner, McGraw-Hill Companies, Inc., the building lessee, and Morgan Stanley & Co., Incorporated, the sublessee of the 44th floor, on his Labor Law Section 240(1) claim, arguing that the ladder was not secured by another worker, that the ladder fell because the floor was slippery and the ladder lacked footings and that defendants had breached their duty to insure that the ladder was placed so as to give him proper protection. …Depending on the fact finder’s determination, plaintiff may, however, establish a section 240(1) violation for failure to provide a proper safety device.”); Kane v. Coundorous, 293 A.D.2d 309, 311, 739 N.Y.S.2d 711, 714 (1st Dep’t 2002) (“A lessee of property under construction is deemed to be an ‘owner’ for purposes of liability under Article 10 of New York’s Labor Laws (see, e.g., Glielmi v. Toys “R” Us, 62 N.Y.2d 664, 476 N.Y.S.2d 283, 464 N.E.2d 981; Bart v. Universal Pictures, 277 A.D.2d 4,5, 715 N.Y.S.2d 240; Tate v. Clancy Cullen Storage Co., 171 A.D.2d 292, 295, 575 N.Y.S.2d 832; Copertino v. Ward, 100 A.D.2d 565, 566, 473 N.Y.S.2d 494).”); Wehmeyer v. Port Authority of New York and New Jersey, 248 A.D.2d 187, 188, 669 N.Y.S.2d 578, 579 (1st Dep’t 1998).

by Richard A. Klass, Esq.

copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.


R. A. Klass
Your Court Street Lawyer

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Repairs are a covered activity under the Labor Law

Binding precedents of the Court of Appeals, as well as the Appellate Division, First and Second Department hold that a worker assigned by his employer to perform repairs to a damaged or inoperable structure are a covered activity for purposes of the Labor Law, not merely routine maintenance. See Prats v. Port Authority of New York and New Jersey, 100 N.Y.2d 878, 880, 768 N.Y.S.2d 178, 179, 800 N.E.2d 351, 352 (2003); Riccio v. NHT Owners, LLC, 51 A.D.3d 897, 899, 858 N.Y.S.2d 363, 366 (2d Dep’t 2008); Rios v. WVF Paramount 545 Property, LLP, 36 A.D.3d 511, 828 N.Y.S.2d 368, 369 (1st Dep’t 2007); Bruce v. Fashion Square Associates, 8 A.D.3d 1053, 1054, 778 N.Y.S.2d 823, 824 (4th Dep’t 2004); Kerr v. Louisville Housing, Inc., 2 A.D.3d 924, 926, 769 N.Y.S.2d 616, 619 (3d Dep’t 2003); Craft v. Clark Trading Corp., 257 A.D.2d 886, 887, 684 N.Y.S.2d 48, 49-50 (3d Dep’t 1999); Holka v. Mt. Mercy Academy, 221 A.D.2d 949, 949, 634 N.Y.S.2d 310, 311 (4th Dep’t 1995).

Binding precedents from all four Departments of the Appellate Division recognize that welding is a covered activity for purposes of the Labor Law. See Elkins v. Robbins & Cowan, Inc., 237 A.D.2d 404, 405-406, 655 N.Y.S.2d 563, 564 (2d Dep’t 1997); Allen v. Telergy Network Services, Inc., 52 A.D.3d 1094, 1097, 860 N.Y.S.2d 299, 303 (3d Dep’t 2008); Spadola v. 260/261 Madison Equities Corp., 19 A.D.3d 321, 323, 798 N.Y.S.2d 38, 40 (1st Dep’t 2005); Shields v. General Elec. Co., 3 A.D.3d 715, 717, 771 N.Y.S.2d 249, 252 (3d Dep’t 2004); Baum v. Ciminelli-Cowper Co., Inc., 300 A.D.2d 1028, 1029, 755 N.Y.S.2d 138, 139 (4th Dep’t 2002); Noble v. AMCC Corp., 277 A.D.2d 20, 714 N.Y.S.2d 495, 496 (1st Dep’t 2000).
Binding Appellate Division, First Department precedents and precedents in Kings County hold that “[a]n eight feet high chain link fence is a structure within the meaning of Labor Law Section 240(1) and, an injury occurring while in the course of [repairing, erecting or] removing it is a covered activity [citations omitted].” Romero v. Trump Village Apartments Two LLC, 20 Misc.3d 1145(A), 873 N.Y.S.2d 237 (Table) 2008 WL 4274483*1 (Sup.Ct. Kings County September 16, 2008); see Carino v. Webster Place Associates, LP, 45 A.D.3d 351, 352, 845 N.Y.S.2d 60, 61 (1st Dep’t 2007); see Riccio, 51 A.D.3d at 899, 858 N.Y.S.2d at 366; Rios, 36 A.D.3d at 511, 828 N.Y.S.2d at 369), which required covered welding (see Elkins, 237 A.D.2d at 405-406, 655 N.Y.S.2d at 564; Allen, 52 A.D.3d at 1097, 860 N.Y.S.2d at 303; Spadola, 19 A.D.3d at 323, 798 N.Y.S.2d at 40), on a fence, a structure for purposes of the Labor Law. (see Carino, 45 A.D.3d at 352, 845 N.Y.S.2d at 61; Romero, 20 Misc.3d 1145(A), 873 N.Y.S.2d 237 (Table) 2008 WL 4274483 at *1).
An assertion that, even if a worker’s activities were otherwise a covered repair, Labor Law Section 240(1) would not apply because there was no ongoing construction project would also fail. The Court of Appeals, in its landmark Joblon decision, as well as precedents binding Appellate Division, First and Second Department precedents expressly reject the defendant-appellant’s argument, holding that where the worker is performing otherwise “protected activities under Labor Law Section 240(1)”, expressly including repairs, alteration of a structure, or painting, said work “need not have been incidental to the other listed activities, such as construction, repair, or alteration, to be covered [citations omitted].” Loreto v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 455, 790 N.Y.S.2d 190, 191-192 (2d Dep’t 2005) (“The scraping and painting performed by the plaintiff were protected activities under Labor Law Section 240(1) and need not have been incidental to the other listed activities, such as construction, repair, or alteration, to be covered (see De Oliveira v. Little John’s Moving, 289 A.D.2d 108, 734 N.Y.S.2d 165, citing Perez v. Spring Cr. Assocs., 265 A.D.2d 314, 696 N.Y.S.2d 468; Livecchi v. Eastman Kodak Co., 258 A.D.2d 916, 685 N.Y.S.2d 515).”); see Joblon v. Solow, 91 N.Y.2d 457, 463-464, 672 N.Y.S.2d 286, 289-290, 695 N.E.2d 237, 240-241 (1998); Blair v. Cristani, 296 A.D.2d 471, 472, 745 N.Y.S.2d 468, 468-469 (2d Dep’t 2002); De Oliveira v. Little John’s Moving, Inc., 289 A.D.2d 108, 734 N.Y.S.2d 165, 166 (1st Dep’t 2001) (“The scraping performed by plaintiff is encompassed within the term “painting” in section 240(1) (see, Perez v. Spring Creek Assocs., 265 A.D.2d 314, 696 N.Y.S.2d 468; Livecchi v. Eastman Kodak Co., 258 A.D.2d 916, 685 N.Y.S.2d 515), and need not have been incidental to the other listed activities, such as construction, repair or alteration, to be covered (cf., Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284; Chapman v. International Bus. Machs., 253 A.D.2d 123, 127, 686 N.Y.S.2d 888).”); Cornacchione v. Clark Concrete Co., Inc., 278 A.D.2d 800, 801, 723 N.Y.S.2d 572, 573 (4th Dep’t 2000); Chapman v. International Business Machines Corporation, 253 A.D.2d 123, 127, 686 N.Y.S.2d 888, 891-892 (3d Dep’t 1999) (“We note that, under this statute, ‘cleaning * * * of a building or structure’ is listed in the alternative to a series of other covered activity, i.e. covered activities include the ‘erection, demolition, repairing, altering, painting, cleaning or pointing of a building’ (Labor Law Section 240[1] [emphasis supplied] ). In our view, under a plain reading of the statute, there is no requirement or condition that commercial cleaning be incidental to the other listed activities, such as construction, repair or alteration activity, to be covered.”). In its landmark decision in Joblon, 91 N.Y.2d at 463-464, 672 N.Y.S.2d at 289-290, 695 N.E.2d at 240-241, the Court of Appeals, expressly rejecting this argument, held as follows:

“Thus, defendants suggest that a guiding principle for courts should be to examine the context of the work leading to the injury, and only when it is performed as part of a building construction job should Labor Law Section 240(1) liability attach.
Such a rule would, of course, ignore prior holdings that workers injured while cleaning a railway car (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra ), repairing an electrical sign (Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318) or painting a house (Rivers v. Sauter, 26 N.Y.2d 260, 309 N.Y.S.2d 897, 258 N.E.2d 191) come within the ambit of the statute even though they were not working at a building construction site. Furthermore, we have already defined a ‘structure,’ for purposes of Labor Law Section 240(1), as ‘’any production or piece of work artificially built up or composed of parts joined together in some definite manner’’ (Lewis Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434). Now to limit the statute’s reach to work performed on a construction site would eliminate possible recovery for work performed on many structures falling within the definition of that term but found off construction sites (see, e.g., id. [telephone pole]; Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra [railway car] ).”

 
In Cornacchione, 278 A.D.2d at 801, 723 N.Y.S.2d at 573, the Appellate Division, Fourth Department held that other statutorily enumerated activities, such as painting or repairs, need not be incidental to other listed activities, such as construction or renovation, to fit within Labor Law §§ 240(1) or 241(6):

“Finally, we conclude that the painting work being performed by plaintiff’s decedent was an activity covered by Labor Law Section 240(1) and Section 241(6). “[T]here is no requirement or condition that [painting] be incidental to the other listed activities, such as construction, repair or alteration activity, to be covered” (Chapman v. International Bus. Machs., 253 A.D.2d 123, 127, 686 N.Y.S.2d 888; see also, Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284). We therefore modify the order in appeal No. 1 by denying the motion of Piscitell in part and reinstating the Labor Law Section 241(6) claim against it.”

 
In Blair, 296 A.D.2d at 472, 745 N.Y.S.2d at 468-469, the Appellate Division, Second Department, citing Cornacchione, 278 A.D.2d at 801, 723 N.Y.S.2d at 573, identically held that painting, one of the statutorily enumerated activities, like performing repairs, was a covered activity for purposes of Labor Law Section 241(6), independent of any construction or renovation:

“The plaintiff is also entitled to summary judgment on the cause of action pursuant to Labor Law Section 241(6) and the branch of the defendant’s motion which was to dismiss that cause of action should have been denied. Contrary to the determination of the Supreme Court, the activity in which the plaintiff was engaged when he was injured falls within the scope of Labor Law Section 241(6) (see 12 NYCRR 23-1.4[b][13]; Cornacchione v. Clark Concrete Co., 278 A.D.2d 800, 723 N.Y.S.2d 572; Vernieri v. Empire Realty Co., 219 A.D.2d 593, 595, 631 N.Y.S.2d 378).”

 
It is irrelevant whether repair work, a statutorily enumerated activity, took place in a construction context or incidental to a construction or renovation project (see Blair, 296 A.D.2d at 472, 745 N.Y.S.2d at 468-469; Cornacchione, 278 A.D.2d at 801, 723 N.Y.S.2d at 573), as repairing a broken fence constitutes a statutorily enumerated covered repair for purposes of both Labor Law Section 240(1) (see Beehner, 3 N.Y.3d at 752, 821 N.E.2d at 941, 788 N.Y.S.2d at 637; Prats, 100 N.Y.2d at 880, 882, 768 N.Y.S.2d at 179, 181, 800 N.E.2d at 352, 354; Juchniewicz, 46 A.D.3d at 624, 848 N.Y.S.2d at 257-258; Bruce, 8 A.D.3d at 1054, 778 N.Y.S.2d at 824; Franco, 280 A.D.2d at 409-410, 721 N.Y.S.2d at 5).
by Richard A. Klass, Esq.

———–
copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.


R. A. Klass
Your Court Street Lawyer

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Safety Devices: Liability for not having safety devices.

Binding precedents from all four Departments of the Appellate Division, including Second Department precedents hold that where it is uncontested that the plaintiff was injured as a result of falling from a ladder, and “at the time of his fall, there were no safety belts, nets, or other safety devices in the area, and he was not equipped with any safety devices. Under the circumstances, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action pursuant to Labor Law Section 240(1)” Denis v. City of New York, 54 A.D.3d 803, 803-804, 863 N.Y.S.2d 773, 773-774 (2d Dep’t 2008); see Lesisz v. Salvation Army, 40 A.D.3d 1050, 837 N.Y.S.2d 238, 240 (2d Dep’t 2007); Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459, 459-460 (1st Dep’t 2004).

In Velasco, 8 A.D.3d at 89, 779 N.Y.S.2d at 459-460, the Appellate Division, First Department expressly held as follows, directly refuting defense counsel’s ridiculous claim that the subject precedents do not stand for this proposition:

“Defendants argue that the ladder was in no way defective, and that the only cause of the accident was plaintiff’s own negligence in helping to set up the ladder in soil and then using it even though he knew that his co-worker was not holding it. The argument overlooks plaintiff’s evidence that no safety devices were provided to protect him in the event the ladder slipped. Given an unsecured ladder and no other safety devices, plaintiff cannot be held solely to blame for his injuries (see Davis v. Selina Dev. Corp., 302 A.D.2d 304, 305, 754 N.Y.S.2d 872; Bonanno v. Port Auth., 298 A.D.2d 269, 270, 750 N.Y.S.2d 7; cf. Blake v. Neighborhood Hous. Servs., 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757). Plaintiff’s use of the ladder without his co-worker present amounted, at most, to comparative negligence, which is not a defense to a section 240(1) claim (see Hernandez v. 151 Sullivan Tenant Corp., 307 A.D.2d 207, 208, 762 N.Y.S.2d 603).”

In Denis, 54 A.D.3d at 803-804, 863 N.Y.S.2d at 773-774, the express language of the Appellate Division, Second Department also directly contradicts the defense counsel’s specious contention:

“As the plaintiff was removing one of the guard frames, the ladder began to shake, causing him to fall to the ground. In his affidavit, the plaintiff asserted that at the time of his fall, there were no safety belts, nets, or other safety devices in the area, and he was not equipped with any safety devices. Under the circumstances, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action pursuant to Labor Law Section 240(1) ( see Ricciardi v. Bernard Janowitz Constr. Corp., 49 A.D.3d 624, 853 N.Y.S.2d 373; Argueta v. Pomona Panorama Estates, Ltd.,39 A.D.3d 785, 786, 835 N.Y.S.2d 358; Boe v. Gammarati, 26 A.D.3d 351, 351-352, 809 N.Y.S.2d 550; Loreto v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 455, 790 N.Y.S.2d 190; Guzman v. Gumley-Haft, Inc., 274 A.D.2d 555, 556, 712 N.Y.S.2d 45).”

Appellate Division, First, Second and Third Department precedents hold that a fall from a ladder or scaffold precipitated by the materials with which plaintiff was working or type of work that the plaintiff was performing, including (1) an electrician being shocked by live wires, (2) a person who fell from a ladder while working on a fence, or (3) a carpenter installing a sign falling from a ladder when the sign suddenly and unexpectedly came loose, sets forth a prima facie violation of the Labor Law, as “it is plain that the ladder he used was not an adequate safety device for the task he was performing, rendering defendants, who admittedly provided no safety devices, absolutely liable under section 240(1) [citations omitted].” Kadoic v. 1154 First Ave. Tenants Corp., 277 A.D.2d 66, 716 N.Y.S.2d 386, 387 (1st Dep’t 2000); see Castillo v. 62-25 30th Ave. Realty, LLC, 47 A.D.3d 865, 865-866, 850 N.Y.S.2d 616, 617-618 (2d Dep’t 2008); Lodato v. Greyhawk North America, LLC, 39 A.D.3d 491, 492-494, 834 N.Y.S.2d 242, 244-245 (2d Dep’t 2007); Quackenbush v. Gar-Ben Associates, 2 A.D.3d 824, 825, 769 N.Y.S.2d 387, 388 (2d Dep’t 2003); Gange v. Tilles Inv. Co., 220 A.D.2d 556, 558, 632 N.Y.S.2d 808, 810 (2d Dep’t 1995); Carino v. Webster Place Associates, LP, 45 A.D.3d 351, 352, 845 N.Y.S.2d 60, 61 (1st Dep’t 2007); Weber v. 1111 Park Ave. Realty Corp., 253 A.D.2d 376, 378, 676 N.Y.S.2d 174, 176 (1st Dep’t 1998); Quinlan v. Eastern Refractories Co., Inc., 217 A.D.2d 819, 820, 629 N.Y.S.2d 819, 820 (3d Dep’t1995).

 
In Gange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810, the Appellate Division, Second Department held that an electrician who fell from a ladder after being shocked was entitled to recover under Labor Law Section 240(1), as the ladder was an insufficient safety device to prevent him from falling after he was shocked:

“Furthermore, the fact that the plaintiff fell off of the ladder only after he sustained an electric shock does not preclude recovery under Labor Law Section 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).”

In Quackenbush, 2 A.D.3d at 825, 769 N.Y.S.2d at 388, the Appellate Division, Second Department explained its rationale in Gange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810, as follows:

“The unrebutted evidence adduced at trial by the plaintiff, an electrician, demonstrated that the defendants, which opted not to call any witnesses or present any evidence at trial, did not provide him with proper protection from height-related dangers connected with his work, and that the ladder on which he worked was inadequate to prevent him from falling 14 feet to the floor after sustaining an electric shock in the course of connecting a ceiling fixture ( see Izrailev v. Ficarra Furniture of Long Is., 70 N.Y.2d 813, 815, 523 N.Y.S.2d 432, 517 N.E.2d 1318).”

In Weber, 253 A.D.2d at 378, 676 N.Y.S.2d at 176, the Appellate Division, First Department expressly adopted the Second Department’s rationale fromGange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810:

Gange v. Tilles Investment Co., 220 A.D.2d 556, 632 N.Y.S.2d 808, is directly on point. There, the Appellate Division, Second Department stated (at 558, 632 N.Y.S.2d 808), ‘the fact that the plaintiff fell off the ladder only after he sustained an electric shock does not preclude recovery under Labor Law Section 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).’”

In Weber, 253 A.D.2d at 378, 676 N.Y.S.2d at 176, the Appellate Division, First Department directly addressed and rejected the argument of the defendant’s herein, holding “[r]egardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing and was a proximate cause of the fall and resulting injuries”:

“Plaintiff was entitled to partial summary judgment on his Labor Law Section 240(1) cause of action, where he was injured when he fell from a ladder while in the course of removing an eight-foot high fence at a construction site. Regardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing and was a proximate cause of the fall and resulting injuries (see Ben Gui Zhu v. Great Riv. Holding, LLC., 16 A.D.3d 185, 791 N.Y.S.2d 43 [2005]; Dunn v. Consolidated Edison Co. of N.Y., Inc., 272 A.D.2d 129, 707 N.Y.S.2d 420 [2000] ).”

Binding Appellate Division, First, Second and Fourth Department precedents expressly reject the defense that plaintiff’s negligently performing work outside exposed to the elements, including rain (as instructed by his employer) where it was foreseeable that this type of accident could occur, was the sole proximate cause of the accident, instead holding “[e]vidence of rain, or other ‘concurrent cause’, at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her Section 240(1) claim [citations omitted]. If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants’ negligence in failing to provide the statutorily-prescribed safety measures.” Robinson v. NAB Const. Corp., 210 A.D.2d 86, 86-87, 620 N.Y.S.2d 337, 338-339 (1st Dep’t 1994); see Shipkoski v. Watch Case Factory Associates, 292 A.D.2d 587, 588-589, 741 N.Y.S.2d 55, 56-57 (2d Dep’t 2002) (Holding that “to establish a prima facie case pursuant to Labor Law Section 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged (see Felker v. Corning, Inc., 90 N.Y.2d 219, 660 N.Y.S.2d 349, 682 N.E.2d 950; Misseritti v. Mark IV Constr. Co., supra)” and this burden is met upon evidence of hazards caused by “neglect, vandalism, and the elements that the plaintiff’s work on the third floor exposed him to a foreseeable risk of injury from an elevation-related hazard, and whether the absence of a type of protective device enumerated under Labor Law Section 240(1) was a proximate cause of his injuries (see Gold v. NAB Constr. Corp., 288 A.D.2d 434, 733 N.Y.S.2d 681; Norton v. Park Plaza Owners Corp., 263 A.D.2d 531, 694 N.Y.S.2d 411; Avelino v. 26 Railroad Ave., 252 A.D.2d 912, 676 N.Y.S.2d 342).”); Callan v. Structure Tone, Inc., 52 A.D.3d 334, 335, 860 N.Y.S.2d 62, 63 (1st Dep’t 2008) (“Plaintiff worker, an electrician employed by third-party defendant subcontractor, was injured while installing ceiling lights over a weekend in an unventilated room where the temperature was estimated at over 100 degrees; he became dizzy from the heat, then nauseous, and fell from near the top of a 10-foot ladder. The worker recalled that as he attempted to reach down to grab hold of the ladder to stabilize himself, the ladder wobbled, he passed out, and both he and the ladder toppled over. Defendant was the general contractor at the work site, and deposition testimony of its project foreman corroborated the worker’s testimony that prior complaints of excessive heat during weekend duty had gone unheeded. The unrefuted evidence of excessively hot work conditions, of which defendant had notice and control; the foreseeable consequence to workers who might suffer heat-related physical symptoms under such circumstances; and the lack of proper safety equipment afforded to elevated workers in light of these conditions, provided a basis for finding defendant strictly liable under Labor Law Section 240(1) ( Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 684 N.Y.S.2d 523 [1999]; see also Cruz v. Turner Constr. Co., 279 A.D.2d 322, 720 N.Y.S.2d 10 [2001]).”); Reisch v. Amadori Const. Co., Inc., 273 A.D.2d 855, 857, 709 N.Y.S.2d 726, 728-729 (4th Dep’t 2000) (“We also reject Amadori’s contention that, because plaintiff knew the plank was wet and complained about its safety before using it, there is an issue of fact whether the absence of safety devices was the sole proximate cause of plaintiff’s injuries. “It is well settled that the [plaintiff’s] contributory negligence is not a defense to a claim based on Labor Law Section 240(1)” (Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556; see also, Robinson v. NAB Constr. Corp.,210 A.D.2d 86, 86-87, 620 N.Y.S.2d 337).”); Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 515-516, 684 N.Y.S.2d 523, 524 (1st Dep’t 1999) (“We note that even if the testimony of defendants’ expert witness were sufficient to raise a fact question on the cause of plaintiff’s fall, partial summary judgment would still have been properly granted to plaintiffs because defendants failed to provide proper protection to plaintiff, e.g., a scaffold, in the event he became overcome by heat, which was foreseeable under the circumstances (see, Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Robinson v. NAB Constr. Corp., 210 A.D.2d 86, 620 N.Y.S.2d 337).”).

 
In Robinson, 210 A.D.2d at 86-87, 620 N.Y.S.2d at 338-339, the Appellate Division, First Department expressly rejected the contention that a worker’s performing assigned work outside in the rain was the sole proximate cause of his fall from an elevated worksite, holding:

“Evidence of rain, or other “concurrent cause”, at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her Section 240(1) claim (see, Iannelli v. Olympia & York Battery Park Co., 190 A.D.2d 775, 776, 593 N.Y.S.2d 553, citing Joyce v. Rumsey Realty Corp., 17 N.Y.2d 118, 122, 269 N.Y.S.2d 105, 216 N.E.2d 317). If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants’ negligence in failing to provide the statutorily-prescribed safety measures.”

In the instant action, the uncontroverted evidence shows that plaintiff fell when he was shocked by the welding equipment he was forced to use outside in the rain without any shelter being provided (see Shipkoski, 292 A.D.2d at 588-589, 741 N.Y.S.2d at 56-57; Callan, 52 A.D.3d at 335, 860 N.Y.S.2d at 63; Robinson, 210 A.D.2d at 86-87, 620 N.Y.S.2d at 338-339), plaintiff shook, the ladder shifted, sank into the mud, and he and the ladder fell to the ground as a result of the failure to provide any adequate safety devices in violation of Labor Law Section 240, so plaintiff has demonstrated a prima facie entitlement to summary judgment on his Labor Law 240(1) cause of action. See id.; Kadoic, 277 A.D.2d at 66, 716 N.Y.S.2d at 387; Davis, 302 A.D.2d at 305, 754 N.Y.S.2d at 872; Costello, 305 A.D.2d at 447, 761 N.Y.S.2d at 80-81; Peter, 300 A.D.2d at 289-290, 750 N.Y.S.2d at 772-773.

 
The failure to provide safety devices may be a proximate cause of the plaintiff’s injuries sufficient to remove the “sole proximate cause” defense from the case and support the grant of summary judgment to an injured worker. See Denis v. City of New York, 54 A.D.3d 803, 803-804, 863 N.Y.S.2d 773, 773-774 (2d Dep’t 2008); Boe v. Gammarati, 26 A.D.3d 351, 352, 809 N.Y.S.2d 550, 550-551 (2d Dep’t 2006); Brandl v. Ram Builders, Inc., 7 A.D.3d 655, 777 N.Y.S.2d 511, 511-512 (2d Dep’t 2004); Wallace v. Stonehenge Group, Ltd., 1 A.D.3d 589, 767 N.Y.S.2d 450, 451 (2d Dep’t 2003); Ranieri v. Holt Construction Corp., 33 A.D.3d 425, 822 N.Y.S.2d 509, 510 (1st Dep’t 2006) (“Plaintiff, a sheet metal worker employed by a subcontractor, was injured when he fell from an unsecured ladder with no safety devices provided to protect him. This activity fell within the ambit of Labor Law Section 240(1), and the failure to supply plaintiff with a properly secured ladder or any safety devices was a proximate cause of his fall (see Samuel v. Simone Dev. Co., 13 A.D.3d 112, 786 N.Y.S.2d 163 [2004]; Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 779 N.Y.S.2d 459 [2004]). There is no reasonable view of the evidence to support defendants’ contention that plaintiff was the sole proximate cause of his injury, nor is there a triable question of fact as to whether he was solely to blame.”); Peralta v. American Telephone And Telegraph Company, 29 A.D.3d 493, 494, 816 N.Y.S.2d 436, 436-437 (1st Dep’t 2006) (“Unrefuted evidence that the unsecured ladder moved, combined with evidence that no other safety devices were provided to plaintiff, warranted a finding that the owners were absolutely liable under Labor Law Section 240(1), notwithstanding claims of comparative negligence (see Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 779 N.Y.S.2d 459 [2004] ), or unsupported claims that plaintiff’s conduct was the sole proximate cause of her injuries.”); Morales v. Spring Scaffolding, Inc., 24 A.D.3d 42, 47-49, 802 N.Y.S.2d 41, 44-46 (1st Dep’t 2005); Serrano v. 432 Park South Realty Co., LLC, 8 A.D.3d 202, 779 N.Y.S.2d 198, 199 (1st Dep’t 2004); Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459 (1st Dep’t 2004); Morin v. Machnick Builders, Ltd., 4 A.D.3d 668, 669-670, 772 N.Y.S.2d 388, 390-391 (3d Dep’t 2004); Bonanno v. Port Of Authority Of New York And New Jersey, 298 A.D.2d 269, 270, 750 N.Y.S.2d 7, 8 (1st Dep’t 2002) (“No other safety devices were provided to prevent the fall. Nor does the evidence suggest that plaintiff’s own actions were the sole proximate cause of his injury. Thus, plaintiff, as a matter of law, was entitled to recover on his Labor Law Section 240(1) claim. Plaintiff was under no obligation to show that the ladder was defective in some manner (Klein v. City of New York, 222 A.D.2d 351, 635 N.Y.S.2d 634, affd. 89 N.Y.2d 833, 652 N.Y.S.2d 723, 675 N.E.2d 458) or to prove that the floor was slippery to make out a Labor Law Section 240(1) violation. It was sufficient to show the absence of adequate safety devices to prevent the ladder from sliding or to protect plaintiff from falling. (Orellano v. 29 East 37th Street Realty Corp., 292 A.D.2d 289, 740 N.Y.S.2d 16.)”).

In Morin, 4 A.D.3d at 669-670, 772 N.Y.S.2d at 390-391, the Appellate Division held as follows, directly substantiating plaintiff’s position and directly refuting defense counsel’s specious contention:

“The only elevation related safety device provided to plaintiff was the extension ladder. No ropes or other safety devices were provided to secure the ladder and prevent it from slipping, nor were harnesses provided to prevent plaintiff from hitting the ground if the ladder did slip…. Accordingly, plaintiff established that defendants violated Labor Law Section 240(1) and such violation was a cause of his injury (see Tavarez v. Weissman, 297 A.D.2d 245, 246 247 [2002]; Squires v. Robert Marini Bldrs., supra at 808 809; Dennis v. Beltrone Constr. Co., 195 A.D.2d 688, 689 [1993]). As this statutory violation was a proximate cause of plaintiff’s fall, plaintiff’s own actions cannot be the sole proximate cause of his fall (see Blake v. Neighborhood Hous. Servs. of N.Y. City, supra at * 6 n 8).”

Similarly, in Serrano, 8 A.D.3d at 202, 779 N.Y.S.2d at 199, the Appellate Division, First Department held as follows:

“Plaintiff established that his accident was attributable to a lack of proper safety equipment and/or the failure to secure the ladder upon which he was working. Even if plaintiff had been negligent in continuing his work in his coworker’s momentary absence, no triable issue would therefore be raised as to whether liability should be imposed upon defendant pursuant to Labor Law Section 240(1), since such negligence would not be susceptible of characterization as the sole proximate cause of plaintiff’s harm (see Dasilva v. A.J., Contr. Co., 262 A.D.2d 214).”

The Second Department reached the identical result in Wallace, 1 A.D.3d at 589, 767 N.Y.S.2d at 451:

“The plaintiffs established their entitlement to partial judgment as a matter of law on the issue of liability by presenting evidence that no safety devices were provided (see Taeschner v. M & M Restorations, 295 A.D.2d 598, 745 N.Y.S.2d 41). In opposition, the defendants failed to raise a triable issue of fact regarding liability. While a plaintiff cannot recover where his or her conduct was the sole proximate cause of his or her injuries (see e.g. Lozada v. GBE Contr. Corp., 295 A.D.2d 482, 744 N.Y.S.2d 464), that defense was not available to the defendants under the circumstances of this case (seeVacanti v. Habasit Globe, 283 A.D.2d 935, 724 N.Y.S.2d 240; DiVincenzo v. Tripart Dev., 272 A.D.2d 904, 709 N.Y.S.2d 271).”; see also Denis, 54 A.D.3d at 803-804, 863 N.Y.S.2d at 773-774 (quoted above in paragraph 25).

Defendant also claims that plaintiff has failed to demonstrate which safety devices could have been employer to prevent his accident, purportedly preventing plaintiff from proving a prima facie entitlement to summary judgment. This contention is both factually and legally incorrect. The defendant’s argument is legally deficient, as binding Appellate Division, First and Third Department precedents which hold “[t]he plaintiff is not ‘required to present evidence as to which particular safety devices would have prevented his injury’ [citations omitted].” Cangialosi v. Gotham Const. Co., LLC, 865 N.Y.S.2d 892, 897-898, 22 Misc.3d 189, 193 (Sup.Ct. Kings County 2008) (Jack M. Battaglia, J.); see Cody v. State, 52 A.D.3d 930, 931, 859 N.Y.S.2d 316, 318 (3d Dep’t 2008) (“Nor was claimant required to prove what additional safety devices would have prevented his injury (see Noble v. AMCC Corp., 277 A.D.2d 20, 21, 714 N.Y.S.2d 495 [2000]). Thus, defendant violated Labor Law Section 240(1) as a matter of law (see Kyle v. City of New York, 268 A.D.2d at 196-197, 707 N.Y.S.2d 445; Reed v. State of New York, 249 A.D.2d 719, 720, 671 N.Y.S.2d 820 [1998]), and this violation clearly was a proximate cause of claimant’s injury (see Meyers v. State of New York, 30 A.D.3d at 928, 817 N.Y.S.2d 735; Pearl v. Sam Greco Constr., Inc., 31 A.D.3d 996, 997-998, 819 N.Y.S.2d 193 [2006]).”); Noble v. AMCC Corp., 277 A.D.2d 20, 21, 714 N.Y.S.2d 495, 496-497 (1st Dep’t 2000).

 
In Noble, 277 A.D.2d at 21, 714 N.Y.S.2d at 496-497, a precedent relied on by defendant in its memorandum of law in opposition to plaintiff’s cross-motion, the Appellate Division, First Department expressly rejected the defendant’s contention:

“Assuming plaintiff’s slide down the boiler was caused by his hitting his head on an overhead pipe, the cramped quarters in which he was working made such an occurrence foreseeable, and thus required the provision of a safety device (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561-562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 516, 684 N.Y.S.2d 523). Moreover, any comparative negligence by plaintiff would not be a defense to the section 240(1) violation in failing to provide a safety device (see, Ortiz v. SFDS Dev., 274 A.D.2d 341, 342, 712 N.Y.S.2d 94, 96, citing, inter alia, Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650, 613 N.E.2d 556). Nor was plaintiff required to present evidence as to which particular safety devices would have prevented his injury (see, Guillory v. Nautilus Real Estate, 208 A.D.2d 336, 338, 624 N.Y.S.2d 110, appeal dismissed and lv. denied 86 N.Y.2d 881, 635 N.Y.S.2d 943, 659 N.E.2d 766).”

by Richard A. Klass, Esq.


———–
copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.


R. A. Klass
Your Court Street Lawyer

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The Wrong Side of the Tracks Costs Law Firm $800,000

Railroad tracks disappearing into the distance. Shown with cement ties and stone bedding, with fields and bushes to the sides.The Long Island Railroad (LIRR) leased one of its old rail yards in Queens to a recycling company. One of the recycling company’s employees was working the late shift on a rainy evening in 2003. That rainy night, he was assigned the task of welding on a portion of the metal fence surrounding the yard with an acetylene torch. He got up on a ladder, climbed up several rungs, and started to weld. At that point, the injured worker got a shock from the welding equipment. The ladder then shifted in the mud and he fell to the ground, suffering severe injuries. Since that incident, he was unable to work, having become disabled, and having had several surgeries to his back and knee.The injured worker hired a law firm to bring a personal injury claim against the owner of the yard under New York’s Labor Law Section 240 known as the “Scaffolding Law.” That law firm brought a petition to file notices of claim against the MTA (Metropolitan Transportation Authority) and the LIRR. The Supreme Court Justice dismissed the petition, indicating in his decision that, as to the MTA, the reason for the late notice of claim was not meritorious and, as to the LIRR, no notice of claim was needed and that the law firm merely needed to timely commence a lawsuit under New York’s Public Authority Law. Needless to say, the time within which the injured worker needed to commence the lawsuit against the LIRR had already passed by the time of that decision. The injured worker retained Richard A. Klass, Your Court Street Lawyer to sue the personal injury law firm for legal malpractice.

Time-barred by the Statute of Limitations:

The concept of a “Statute of Limitations” is that people are afforded a certain amount of time to take action concerning a legal claim they may have; if that period of time passes without taking action, then the ability to pursue the legal claim has been waived. Most people are familiar, for instance, that in New York State the statute of limitations period within which to file most personal injury cases is three years from the date of accident. In this particular case, though, the Statute of Limitations period within which to sue the potentially liable parties was shorter (to a period of one year and thirty days) because the personal injury claim was against the LIRR, a governmental authority under a special statute.Once the judge had dismissed the injured worker’s lawsuit, thus leaving him without recourse to recover monetary damages for his injuries, the law firm was exposed to the legal malpractice claim brought against it because it was alleged to have “blown” the statute of limitations by neglecting to timely file the lawsuit against the LIRR.In legal malpractice cases, the statute of limitations in which to sue an attorney is three years from the date of malpractice under New York’s CPLR Section 214(6). Since many times in litigation, attorneys who have committed malpractice continue representing their clients for months or years afterward, there is also a concept of “continuous representation.” This means that the statute of limitations “clock” does not start to tick until the attorney has stopped representing the client in the matter.

Proving the underlying case under Labor Law Section 240:

A legal malpractice case is a very difficult type of litigation for one particular reason: Assuming that the lawyer ‘screwed up’ as much as possible, doing everything as wrong as could be done or failing to do any of the right things, it still might not matter — the ultimate question for purposes of liability for legal malpractice will be whether there was any merit to the underlying case that the lawyer was hired to handle. Rephrased: Would the client have won “but for” his lawyer?!New York’s Scaffolding Law provides that owners of real estate, such as the LIRR, are “strictly liable” for injuries suffered by workers who fall from a ladder or scaffold under almost all circumstances, with limited exceptions, such as if there was a lack of adequate safety devices. This basically means that the landowner is responsible to pay for all of the worker’s damages for his injuries, including medical bills, lost wages, and pain and suffering. An exception to holding the landowner strictly liable under the Scaffolding Law is where the injured worker is found to have been the “sole proximate cause” of his injuries. In this case, the law firm being sued for legal malpractice argued that, in the event the LIRR had been sued, the injured worker would not have prevailed anyway because this exception to the Scaffolding Law would have applied because he knew not to weld in the rain. In response, the injured worker claimed that his employer at the yard instructed him to weld in the rain and that he was not going to be insubordinate.Separate and apart from the Scaffolding Law issue, the law firm argued that there was no proof of exactly where the fall occurred to establish that it happened on the LIRR’s property. In response, a surveyor was retained to survey the area surrounding the old rail (now recycling) yard, and Deeds dating back to the 1800s were obtained. These documents were produced to establish the legal ownership of the location where the fall took place. This was a necessary element of the case in order to prove that the LIRR would have been liable for injuries to workers on its property under the Scaffolding Law.The legal malpractice case came up for a pre-trial conference. Attorneys Richard A. Klass and Stefano A. Filippazzo appeared at the conference on behalf of the injured worker. The law firm being sued for legal malpractice finally settled with the injured worker for $800,000 to settle the action and pay for his injuries and extensive medical lien.
by Richard A. Klass, Esq.
———– copyr. 2011 Richard A. Klass, Esq.
Art credits: page one, Hjørring – Hirtshals Line in Northern Denmark. Photograph by Tomasz Sienicki, 2003.
The firm’s website: www.CourtStreetLaw.com Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions. Prior results do not guarantee a similar outcome.Marketing by The Innovation Works, Inc.

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