O’Gorman Comments on Legal Issues in New York State Construction Accidents & Insurance Coverage

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  Sep 28, 2024

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  edwardogormanesq3

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POSTS. MOST RECENT. For earlier posts, click on Sep 29, 2024-by edwardogormanesq3 in Uncategorized in upper right corner. It also provides an index of the posts.

December 10. Industrial Code 23-1.8(a). Personal protective equipment. Eye Injury.

23-1.8(a).

Eye Protection.  Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes.

Comment.  Labor Law Section 241(6) action requires an Industrial Code that is specific as to safety, rather than general safety language. 23-1.8(a) has been held to be a specific safety statute supporting a 241(6) action.

Whether eye injury sustained at a work site was caused, in part or in whole, by defendant’s failure to provide a plaintiff with safety google or other protective eyewear.  Accidents resulted from an eye being struck by a

nail from a pneumatic nail gun;

small pieces of concrete from grinding operations;

cable wire swinging down from a ceiling;

a screw springing back from power tool use;

piece of wood expelled from electric miter saw;

Employer’s Affirmative Obligation. 23-1.8(a) requires employer to provide googles and to ensure googles are used by employees.  As such, even if goggles are available at the work site, employer has further obligation to ensure goggles are used by employees.

Defenses to 23-1.8(a)

Where an employee removes the goggles for some reason, possibly to clean them, but also continues working without wearing the goggles, such action by employee held to be proximate cause of the accident.  

Lack of foreseeability that a work activity requires use of goggles.

Accident lacks factual applicability to 23-1.8(a).

23-1.8(a) Specific Enough to Support 241(6) Cause of Action

First Dept. 2012.  Buckley v. Triborough Bridge & Tunnel Auth., 91 AD3d 508; 1999.  Galawanji v. 40 Sutton Place Condominium, 262 AD2d 55;

23-1.8(a). Foreseeable Risk of Eye Injury.

Comment. Defense of 23-1.8 action is the work performed by plaintiff offered no foreseeability of a danger to the worker’s eyes & as such, googles were not provided. Appellate decisions hold it is an issue of fact for jury to decide.  

First Dept.

First Dept. 2016. Defendant’s SJ Motion Denied as to 23-1.8(a). Whether plaintiff engaged in operation which may endanger the eyes. Plaintiff injured when screw he was driving into sheetrock using power drill sprang back, striking his eye.Paulino v. Bradhurst Associates, LLC, 144 AD3d 430;

First Dept. 2003. Whether an activity is protected by 23-1.8(a) requiring the furnishing of eye protection equipment is a jury question that turns on whether a particular activity involves a foreseeable risk of eye injury.  Fresco v. 157 E. 72^nd St. Condominium, 2 AD3d 326;

First Dept. 2012.Foreseeable risk of eye injury. Issue of fact. Hit in eye with lanyard hook.Buckley v. Triborough Bridge & Tunnel Auth., 91 AD3d 508;

First Dept. 1993.Foreseeable risk of injury was issue of fact where plaintiff drove a masonry nail through plywood & into concrete. Nail suddenly flew back, striking left eye.Cappiello v. Telehouse Inter, Corp. of America, 193 AD2d 478;

Second Dept.

Second Dept. 2015. Issue of Fact Whether 23-1.8(a) Applied to Injury From Pneumatic Nail Gun.  Whether foreseeable eye protection required.  Defendant’s motion denied.Plaintiff, employed as carpenter on renovation project, was hit in the left eye with a nail while using a pneumatic nail gun to attach molding around a window. 23-1.8(a) requires furnishing of eye protection equipment to employees “engaged in any … operation which may endanger the eyes.”  Issue of fact as to whether use of pneumatic nail gun made the possibility of eye injury foreseeable as to require eye protection.     Montenego v. P12, LLC, 130 AD3d 695;

23-1.8(a) Not Dismissed.

First Dept.

First Dept. 2017. Defendant’s SJ Motion Denied.  Plaintiff’s deposition testimony raised issue of fact whether plaintiff provided and used proper eye protection. Willis v. Plaza Constr. Corp., 151 AD3d 568;

First Dept. 2016. While grinding stone, debris went into plaintiff’s eye. Plaintiff aware of need for safety googles & requested googles. Employer told plaintiff to begin work sans goggles. No evidence of culpable conduct by plaintiff.Bundo v. 10-12 Cooper Square, Inc., 140 AD3d 535;

First Dept. 2002. Issue of Fact.  Plaintiff standing on ladder. Pencil thick data cable attached to grid in ceiling, swung away from grid, striking plaintiff’s eye.McBryne v. Ambassador Constr. Co., 290 AD2d 243;

First Dept. 1999. 23-1.8 Not Dismissed. Evidence not support defendant’s assertion that plaintiff would not have Worn protective goggles while engaged in grinding 0peration even if such goggles were provided.Galawanji v. 40 Sutton Place Condominium, 262 AD2d 55;

23-1.8 Dismissed. Not Factually Applicable.

First Dept. 2003. 23-1.8(a) Dismissed. Plaintiff not performing construction work. Plaintiff struck in eye by piece of wire while repairing a dishwasher.Chuchuca v. Redux Realty, 303 AD2d 239;

Second Dept.

23-1.8(a) Not Dismissed.

Second Dept. 2024. Defendants’ Motion Denied. Plaintiff injured dismantling a scaffold. Issue of fact whether defendants failure to require plaintiff to wear safety googles was a proximate cause of accident. Gonzalez v. City of NY, 2024 NY Slip Op 02801;   

Second Dept. 2024. 23-1.8(a) Not Dismissed. Defendant cited deposition testimony that plaintiff’s employer provided protective eyeglasses to all workers & required such eyeglasses be worn at all times. Plaintiff testified he never received such eyeglasses & that at time of accident was wearing his own safety glasses. Issue of fact whether plaintiff provided with approved eye protection equipment, whether he was wearing personally provided eye protection equipment & if so, whether he removed them prior to accident. Argueta v. City of NY, 223 AD3d 862;

Second Dept. 2016.Issue of Fact caused by contradicting deposition testimony whether safety googles available at work site.  Ramos v. Penn Tower, LLC, 136 AD3d 1009;  

Second Dept. 2008. Defendant’s SJ Motion as to Dismissal of 23-1.8(a) Denied. Right eye struck by piece of wood molding expelled from electric miter saw, causing blindness.Markey v. CFMM Owners Corp., 51 AD3d 734;

23-1.8(a) Dismissed. Plaintiff’s Actions Sole Proximate Cause of Accident.

Second Dept. 2010. Dismissed. Plaintiff’s Sole Action of removing protective eye gear to clean it absolved defendant of liability.Beshay v. Eberhart LP, 69 AD3d 779;

Second Dept. 2006. Dismissed. Although plaintiff owned safety goggles, chose not bring them when flooring work performed. using hammer to remove nail embedded in floor, struck in eye by piece of the nail. McCormack v. Universal Carpet Upholstery, 29 AD3d 542;

Second Dept. 2017. 23-1.8(a) Factually Inapplicable.  2 Falling Panels of Exhibition Booth Fell Striking Plaintiff. While plaintiff performing electrical work at Javits Center, 2 panels comprising the walls of an exhibition booth fell on him. Honeyman v. Curiosity Works, Inc., 154 AD3d 820;

Second Dept. 2011. 23-1.8(a) Dismissed Because Not Factually Inapplicable. While Measuring Door Frame While Performing Renovations to a Building, A Group of 20 Eight Foot Long Metal Studs Stacked Against Sheetrock, Fell, Striking Plaintiff in The Eye.Zamajtys v. Cholewa, 84 AD3d 1360;

Third Dept.

Third Dept. 1997. 23-1.8(a) Dismissed.  Plaintiff removed safety goggles because such goggles dirty & plaintiff continued working sans goggles.  Nail struck plaintiff’s eye when not wearing goggles.McLoud v. State of NY, 237 AD3d 783;

Fourth Dept.

Fourth Dept. 1996. Issue of Fact. Plaintiff’s drilling into concrete struck by piece of concrete.  McCune v. Black River Constructors, 225 AD2d 1078;

Fourth Dept. 2008. 23-1.8(a) Dismissed. Plaintiff hit face against ceiling joist while framing a house.Pilato v. Nigel, 48 AD3d 1133; 

23-1.8(a) Dismissed. No Eye Injury

First Dept. 2020. 23-1.8(a) was dismissed as plaintiff not allege he sustained an eye injury. Langer v. MTA Capital Constr. Co., 184 AD3d 401;

23-1.8. “Any Other Operation Which May Endanger The Eyes”

First Dept.

First Dept. 2019. 23-1.8(a) Issue of Fact. Hammer Causing Nail to Strike Plaintiff’s Eye. While plaintiff was in process of demolishing a sidewalk bridge, a nail he was attempting to remove with a hammer struck him in the eye.  Whether demolishing a sidewalk bridge & removing nails are activities covered by 23-1.8(a) is an issue of fact. Roque v. 475 Bldg. Co., LLC, 171 AD3d 543;

Second Dept.

Second Dept. 2024. Plaintiff’s Motion Denied. Nail Gun.  Plaintiff injured while operating a nail gun to attach wood plates to a building roof when debris from a metal wire to which nails were secured, such that they could be loaded into the nail gun, flew off and hit his right eye. 23-1.8(a) requires the furnishing of eye protection equipment to employees who are “engaged in any … operation which may endanger the eyes.” Plaintiff failed to eliminate a triable issue of fact as to whether at the time of the accident, plaintiff was engaged in work that may endanger the eyes so as to require use of eye protection pursuant to the code. Chuqui v. Cong. Ahavas Tzookah, 226 AD3d 960;

Second Dept. 2015. 23-1.8(a). Issue of Fact. Plaintiff employed as carpenter on renovation project.  While using pneumatic nail gun to attach molding around a window, he was hit in left eye with a nail.  Plaintiff alleged not provided adequate eye protection while using nail gun. Defendant’s submissions failed to eliminate issue of fact of whether plaintiff engaged in work that may endanger the eyes so as to require use of eye protection pursuant to 23-1.8. Issue of fact whether plaintiff’s use of pneumatic nail gun made possibility of injury to his eye sufficiently foreseeable as to require eye protection. Also, issue of fact whether approved eye protection provided to plaintiff. Montenegro v. P12, LLC, 130 AD3d 695;  

Fourth Dept.

Fourth Dept. 2015. 23-1.8(a) Applied to Operating Pneumatic Nail Gun. Plaintiff was operating a pneumatic nail gun when a nail ricocheted & penetrated right eye.  Plaintiff’s use of the nail gun clearly falls within the regulatory definition of engaging “in any other operation which may endanger the eyes.”  Here, it was held such code section applied. Quiros v. Five Star Improvements, Inc., 134 AD3d 1493; 

Plaintiff’s Comparative Negligence in Context of 23-1.8(a)

Fourth Dept. Fourth Dept. 2015. Plaintiff’s Motion Denied. Issue of Fact as to Comparative Negligence as to 23-1.8(a).  Triable issue of fact as to whether defendant provided eye protection, or made such protection available, to plaintiff, and if so, whether plaintiff was comparatively negligent in refusing such eye protection.  Court noted that even assuming plaintiff established defendant violated 23-1.8(a), any such violation does not establish negligence as a matter of law but is merely some evidence to be considered on question of defendant’s negligence. Quiros v. Five Star Improvements, Inc., 134 AD3d 1493;

December 6. Commercial Window Washing. Within 240(1) Protection. Not Routine Maintenance.

“Window washer’s gravity related fall falls within scope of 240(1) enumerated activity of “cleaning” if elevated related hazard that is proximate cause of the accident is attendant to his work as that work was intended to be performed.”

Court of Appeals

Court of Appeals. 2008. 240(1) Liability Imposed.  As part of commercial cleaning contract, plaintiff’s employer instructed plaintiff to clean 10-foot interior windows in dormitory building, providing her with only a rag and window washing solution. When plaintiff asked for a ladder, was told to climb on furniture. While standing on a bed, plaintiff fell. Court held not routine maintenance. 240(1) liability as plaintiff not provided with a ladder, scaffold or other safety device. Swiderska v. NYU, 10 NY3d 792;   

Court of Appeals. 2007.  240(1) Dismissed. Plaintiff failed to meet his burden. Plaintiff did not testify how high he could reach with his wand & squeegee while standing on floor. While plaintiff stated he had to stand on a desk, plaintiff provided no evidence to show this was because he was required to work at elevation to clean interior of the windows. Desk may have been in his way or it may have been easier to reach the top of the windows while standing on the desk or it may have been quicker for him to climb than to seek assistance in moving it. To recover under 240(1), plaintiff must establish he stood on the desk because he was obliged to work at an elevation to wash the interior of the windows. Summary judgement to defendants as plaintiff did not need protection from effects of gravity. Prior to the accident, plaintiff had cleaned the interior of 8 other windows of exactly the same height without needing a ladder or other protective device. Broggy v. Rockefeller Group, Inc., 8 NY 3d 675;

First Dept.

First Dept. 2016. 240(1) Liability Imposed. Evidence provided that plaintiff, whose decedent fell to his death while cleaning a window on the 13^th floor of apartment building, entitled to summary judgment on 240(1) claim against owner & manager of the building. Decedent hired by 2 shareholders of residential cooperative & had a long standing arrangement with building to clean its windows. As such plaintiff was engaged in commercial window washing involving elevation related risks as opposed to routine household window washing. Domaszowec v. Residential Mgt. Group LLC, 135 AD3d 572; 

First Dept. 2009. 240(1) Liability Imposed. Plaintiff, a window washer employed by private contractor that defendants hired, was instructed to clean the interior windows of defendants’ building. Plaintiff previously cleaned these windows and requested his supervisor provide a pole extension to allow him to reach upper portions of windows. Such request was denied. As such, plaintiff had to stand atop 4 foot high, wall mounted, heating convector covers to reach windows’ upper areas. The convector cover came loose from the wall causing a fall. Such window washing involved elevation related risk within 240(1). DeKenipp v. Rockefeller Ctr., Inc., 60 AD3d 550;  

First Dept. 2021. Issue of Fact. A window washer’s gravity related fall falls within scope of 240(1) if elevated related hazard that is proximate cause of the accident is attendant to his work as that work was intended to be performed. Plaintiff’s employer testified exterior of the windows could & should have been cleaned while worker was inside the premises, & property manager testified the windows were tilt in so that the exterior did not have to be cleaned from the outside. However, coworker averred he & decedent worker previously cleaned the windows from the outside, which their employer knew & at least tacitly approved. Issue of fact precluded determination of 240(1) claim. SVL by Yohanny v. PBM, LLC, 191 AD3d 564;

240(1) Not Dismissed. Integral Part of The Window Washing. First Dept. 2012. Section 240(1) Not Dismissed. Exterior window washing is protected activity under 240(1). Plaintiff, a professional window washer, while carrying water up to the scaffold upon which he worked, fell down fixed exterior staircase providing sole means of access to scaffold. Plaintiff’s act of carrying water for washing the windows was integral part of cleaning windows. Wowk v. Broadway 280 Park Fee, LLC, 94 AD3d 669;

December 5. Labor Law §200 Dismissed Against Construction Manager (CM). Contract Language.

Comment. Look the to usual contract language.

Paragraph 2.3.15 of the agreement provided CM shall not have control over or charge of and shall not be responsible for construction means, techniques, sequences or procedures, or for safety precautions and programs in connection with the work of each of the Contractors, since these are solely the Contractor’s responsibility.

Such contractual language provides a CM is not liable under §200 where accident arises out of means & methods of plaintiff’s work. Such language provides implementing site safety precautions are sole responsibility of separate contractors on site. Such contract language usually results in a finding the CM has no supervisory control over injury producing work and dismissal of §200 action.

 Contract Terms. CM Not Responsible For Means & Methods of Subcontractor’s Work.

First Dept. 2020. §200 Dismissed. Contract Provided CM Not Responsible For Means & Methods of Work. Plaintiff, employee of Rockmore Contracting, fell from ladder when supervisor pulled on vacuum extension cord wrapped around foot of ladder. URS was CM. Not disputed accident arose out of means & methods of plaintiff’s work. Contract between URS & NYCHA provided URS not responsible for means & methods of Rockmore’s work. URS’ project superintendent testified URS responsible for overseeing general construction to ensure it was built per plans & specifications, on schedule & on budget. While URS performed daily inspections of work, including Rockmore’s work & had authority to stop work for safety reasons, URS had no obligation as to work methods performed. Mendriski v. NYCHA, 189 AD3d 410;

First Dept. 2015. §200 Dismissed. CM Not Exercise Supervisory Control. Defendants established under Construction Management Services Contract (CMS) not obligated to exercise supervisory control over construction contractor’s means or methods of work, nor did they assume such responsibility.  Although under the CMS, CM had some general duties to monitor safety at work site & personnel were on the site on daily basis, such supervisory duties insufficient to form a basis for §200 liability. DaSilva v. Haks Engrs., Architects & Land Surveyors, PC, 125 AD3d 480;

First Dept. 2014. §200 Dismissed. Mega satisfied its burden it did not control the work causing plaintiff’s accident. Plaintiff, a mason employed by Flagge, testified he worked solely under supervision of his employer’s foreman, received no direction from anyone else & never heard of Mega, the CM. Construction management agreement between Mega & owner demonstrated that at most, Mega had general supervisory authority over plaintiff’s work, which is insufficient for finding of §200 liability. Suconota v. Knickerbocker Props., LLC, 116 AD3d 508; 

Second Dept. 2011. §200 Dismissed. Although CM generally not considered a contractor responsible for safety of workers at construction site pursuant to Labor Law §200 & 241(6), it may nonetheless become responsible if it has been delegated authority & duties of a GC, or if it functions as agent of premises owner. A party is deemed to be agent of owner or GC under Labor Law when it has supervisory control & authority over work being done when a worker is injured. To impose such liability, defendant must have authority to supervise or control injury producing work so as to enable it to avoid or correct unsafe condition. It is not defendant’s title that is determinative, but degree of control or supervision exercised. Role of JMB was only one of general supervision, which is insufficient to impose liability under the Labor Law.  Paragraph 2.3.15 of the agreement provided that “CM shall not have control over or charge of and shall not be responsible for construction means, techniques, sequences or procedures, or for safety precautions and programs in connection with the work of each of the Contractors, since these are solely the Contractor’s responsibility.” Rodriguez v. JMB Architecture, LLC., 82 AD3d 949;

Second Dept. 2007. §200 Dismissed. CM no authority over injury producing work. Agreement between Builders Group & St. Anns specifically provided construction manager “shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the contractors, since these are solely the contractor’s responsibility.” In carrying out its duties, Builders Group not assume & could not have assumed, responsibility for work of TAP, since Builders Group was unaware that Best Choice had subcontracted taping work to TAP. Plaintiff & TAP’s supervisor testified that plaintiff took his instructions from TAP & no other party. Also, no evidence Builders Group had control or supervisory role over work of plaintiff as to enable it to prevent any unsafe condition, or that Builders Group provided defective ladder or had notice of defects. As such, §200 § common law negligence actions dismissed. Delahaye v. Saint Anns School, 40 AD3d 679;

Fourth Dept. 2014. §200 & Common Law Negligence Dismissed. Contract. Plaintiff tripped on piece of old insulation & fell on stack of boards on flat roof at high school construction site. Plaintiff was walking backwards on the roof dragging new piece of insulation to section of roof where coworkers were working. CM may be liable as agent of owner if CM had ability to control activity causing accident. Here, defendant not such an agent as owner had not delegated it authority to supervise & control plaintiff’s work. Pursuant to a contract, CM “had no control over or responsibility for safety of workers at construction site.” Deposition testimony & affidavits submitted established CM acted in accordance with its authority under the contract. Hargrave v. LeChase Constr. Servs., LLC, 115 AD3d 1270;

Fourth Dept. 2013. §200 Dismissed. Contract. Plaintiff’s decedent suffered fatal heart attack after ascending five flights of stairs of building undergoing renovation. Savarino Construction was CM for the renovation. Under the contract with owners, Savarino responsible for coordinating activities safety programs of contractors at project, but had no control over acts, omissions or safety precautions of contractors. As Savarino not responsible for performance of the work or the premises on which work was undertaken, §200 & common law negligence claims dismissed, as plaintiff failed to raise issue of fact. Miller v. Savarino Constr. Corp., 103 AD3d 1137;

December 4. Fall From Elevated Height While Performing “Repair Work” Within Labor Law §240(1) Protection       

Comment. Issue is whether worker suffered accident while engaged in repair work, which provides 240(1) protection, or whether engaged in maintenance work, which does not provide 240(1) protection. Such repair work, to be covered within §240(1), requires a fall from an elevated height. If plaintiff falls from elevated height while engaged in maintenance work, 240(1) action is dismissed.

“Delineating between routine maintenance & repairs is frequently a close, fact driven issue & such distinction depends upon whether item being worked on was inoperable or malfunctioning prior to commencement of work & whether work involved replacement of components damaged by normal wear & tear.”

Where a person is investigating a malfunction, efforts in furtherance of that investigation are protected activities under 240(1).

To qualify  as “repair” work, it cannot be work arising out of wear & tear.

Inspection of integral part of the building in furtherance of repairing apparent malfunction is within 240(1) protection.

Repair Work. 240(1) Liability Imposed.

First Dept.

Drain Pipe Repair

First Dept. 2023. 240(1) Liability Imposed. Plaintiff went to repair a drain pipe on HVAC unit that required to be removed & reset at a correct angle. Extension ladder collapsed. Owner & tenant failed to raise issue of fact as to whether plaintiff performing routine maintenance rather than a repair. Absence of work ricket not controvert plaintiff’s testimony as work tickets only prepared after work was performed and plaintiff injured before he began work. Manfredonia v. 750 Astor LLC , 217 AD3d 573;

Replacing Glass Panels

First Dept. 2014. 240(1) Liability Imposed. Replacing Cracked Glass Panels in Skylight of Church Steeple Repair Work. Plaintiff & 3 coworkers sent by employer to replace cracked glass panels in skylight of defendant church’s steeple. To access steeple, plaintiff placed 14 foot extension ladder belonging to his employer on top of roof of church, leaning against steeple. Plaintiff used such ladder on 3 prior occasions without incident. As plaintiff climbed ladder, bottom of ladder “kicked out.”  Plaintiff submitted affidavit that in his many years as a glazier, skylight panels such as the ones he was replacing not crack or even wear out over time & could have remained in place sans repair or replacement  indefinitely, unless some unusual event caused them to crack or break. As glass panels not being replaced because of wear & tear, & because of plaintiff’s 30 years of being a glazier, he was competent to state the replacement of glass panels was repair work, not routine maintenance. Soriano v. St. Mary’s Indian Orthodox Church of Rockland, Inc., 118 AD3d 524;

Electrical/Wiring

First Dept. 2021. Hardwiring. 240(1) Liability Imposed. Plaintiff fell from unsecured ladder that suddenly moved as he reached overhead to hardwire a new smoke and carbon monoxide detector to replace an inoperable hardwired smoke detector that he had just removed. Such work constituted “repair” within 240(1). Rodriguez v. Milton Boron, LLC, 199 AD3d 537;

First Dept. 2007. Repairing Electrical Wiring. Plaintiff, building engineer, in process of repairing & replacing electrical wiring in order to restore lighting to entire floor, at time ladder collapsed on which he was standing. Rios v. WVF-Paramount 545 Prop., LLP, 36 AD3d 511;

Reconfiguring Cable Equipment to Utility Pole

First Dept. 2021. Plaintiff’s work replacing damaged cable equipment & reconfiguring its support system using J-hooks & anchors affixed to utility pole amount to repairs and/or alteration to equipment. Villalta v. Consolidated Edison, 197 AD3d 1078; 

Repairing Light Fixture

First Dept. 2022. 240(1) Liability Imposed. Retrofitting Light Fixtures. Plaintiff established defendant’s liability to 240(1) through plaintiff & his coworker’s affidavit that an unstable 80 foot A-frame ladder, which was missing rubber feet, shifted, causing a fall.  Plaintiff also established that his work of retrofitting light fixtures was covered under Section 240(1) & not constitute mere maintenance. Laporta v. PPC Commercial LLC, 204 AD3d 538;

Second Dept. 2010. Repairing Light Fixture. 240(1) Liability Imposed. Plaintiff fell from stepladder which broke while he was in process of removing a ceiling light fixture in order to repair. Plaintiff’s testimony showed engaged in repair work, as he testified was in process of removing light fixture from ceiling so that it could be repaired after realizing problem not merely a burnt out bulb. That light fixture eventually repaired by replacement of component part thereof not obviate that fixture had to be removed from the ceiling to accomplish such repair. Also, repaired part was not one which regularly wore out in normal course of wear & tear. Nowakowski v. Douglas Elliman Realty, LLC, 78 AD3d 1033;

Roof

First Dept. 2016. 240(1) Liability Imposed. Fall from ladder while repairing leaky roof.Kolenovic v. 56^th Realty, LLC, 139 AD3d 588;

First Dept. 2011. 240(1) Liability Imposed. Roof Inspection “Repair Work.”  Plaintiff was doing a walk through on the roof, assessing what repairs were necessary and the materials that would be required. As plaintiff stopped near the middle of the roof, the roof started to buckle causing him to fall to his right side and land on his knee. The roof sank 2 inches at this location. The roof began leaking a year before the accident. Court rejected that plaintiff was involved in routine maintenance, which is not covered activity under 240(1). At a minimum, plaintiff integral part of repair work. Mendoza v. Highpoint Assoc., IX, LLC, 83 AD3d 1.

First Dept. 2004. 240(1) Liability Imposed. Replacing Roof Tiles Not “Routine Maintenance.” Thework plaintiff’s employer was hired to perform, replacing loose & broken slate roof tiles, cleaning gutters, installing new copper flashing & repairing a roof leak, not routine maintenance under 240(1).  Velasco v. Green-Wood Cemetery, 8 AD3d 88;

Elevator

First Dept. 2016. 240(1) Liability Imposed. Elevator Fell on Elevator Repairman. Elevator repairman, employed by Brink, injured when elevator fell on top of him inside of building. Plaintiff engaged in repair work as elevator’s safety shoes not operating properly & condition isolated event, unrelated to normal wear & tear. Also, elevator a falling object within meaning of Labor Law, even though it was not actually being hoisted or secured, as it required securing for purposes of the repair work.  McCrea v. Arnlie Realty Co., LLC, 140 AD3d 427;

Response to Pumping Station Flooding Condition

First Dept. 2013. Response to Flood at Pumping Station Constituted a “Repair.” In course of his work, plaintiff fell into steam manhole during a nor-easter. He landed in pool of boiling water up to his chest.  It was held plaintiff engaged in a repair under 240(1) as he was called upon to address a flooding condition that exceeded capacity of a pumping station. Dos Santos v. Consolidated Edison of NY, Inc., 104 AD3d 606;

Replacing Subway Rails

First Dept. 2011. Replacing Subway Rails as Part of Capital Improvement Project. Not Routine Maintenance. Plaintiff & crew installing new subway track that was part of subway modification project. Plaintiff & crew attempting to “strip” & remove a rail. Deposition testimony established rails at issue being removed for purpose of upgrading subway signal system & not because they were worn & that general context of work was 5-year capital improvement project. Such factors raise issues of fact against a finding plaintiff engaged in routine maintenance.  Medina v. City of NY, 87 AD3d 907;

Climbing Ladder in Response to Alarm

First Dept. 2002. 240(1) Liability Imposed. Response to an Alarm to Integral Building Part. Not Routine Maintenance. Plaintiff climbed water tank ladder, atop the building roof, in response to an alarm, indicating something was wrong.  Not routine maintenance of water tank. Inspection of integral part of the building in furtherance of repairing an apparent malfunction is within 240(1). Caraciolo v. 800 Second Avenue Condominium, 294 A.D.2d 200;

Second Dept.

Electrical/Wiring

Second Dept. 2017. 240(1) Liability Imposed. Removing Cable Wire From Building Walls. Plaintiff, a field technician for Verizon, was assigned to remove old cable from exterior walls of building.  While standing on ladder performing such work, ladder started to shake & lean to the left, causing a fall. Defendant failed to offer evidence that plaintiff performing merely routine maintenance as opposed to a repair pursuant to 240(1). Barone v. 1116 Ave. H. Realty, LLC, 151 AD3d 928;

Second Dept. 2007. Plaintiff hired to rewire a telephone system. Plaintiff was running wires in attic crawl space, as directed by defendant, when he fell through a sheet rock ceiling. Such work constituted “alteration” work under 240(1). Becker v. ADN Design Corp., 45 AD3d 711;

Second Dept. 2011. 240(1) Liability Imposed. Replacing Transformer in a Store. Plaintiff’s employer hired to replace bulbs & transformers in 78 overhead light fixtures, located 12 feet above floor.  Plaintiff fell from ladder engaged in such work. Held that when viewed in isolation, task of replacing transformer might be considered routine maintenance. However, as plaintiff assigned to perform general electrical work, plaintiff engaged in repair work. Fox v. H&M Hennes & Mauritz, LP, 83 AD3d 889;

Light Fixtures

Second Dept. 2019. 240(1) Liability Imposed. Plaintiff’s testimony went to repair of lighting poles. Not routine maintenance. Plaintiff fell from atop 8-foot wooden A-frame ladder while working on light fixture at Nassau Coliseum. While plaintiff’s testimony provided that some of lighting poles only required tightening or replacement of a light bulb, more intensive work also required on other lighting poles to make them function. This fell within “repairing” a light fixture., within scope of 240(1). Wass v. County of Nassau, 173 AD3d 933;

Second Dept. 2006. 240(1) Liability Imposed. Replacing photo cell in light fixture. Plaintiff fell from ladder while engaged of restoring lighting to a parking lot on premises owned by State of NY. A ladder was used to replace a neglected lighting fixture located on a pole in the lot with another fixture that would accept long-lasting, incandescent bulb. Plaintiff used ladder to access roof of shed adjacent to photo cell needing replacement. Photo cell automatically controlled parking lot lighting. While replacement of photo cell was mere routine maintenance, replacement of light fixture on lighting pole was repair work. Fitzpatrick v. State of NY, 25 AD3d 755;

Door

Second dept. 2007. 240(1) Liability Imposed. As plaintiff was repairing a non-functioning door, he was engaged in type of repair work covered under 240(1). Lofaso v. JP Murphy Assoc., 37 AD3d 769;

Replacing Door Track

Second Dept. 2008. 240(1) Liability Imposed. Fall from ladder while working in pit of elevator replacing a door track. Covered under 240(1). Riccio v. NHT Owners, LLC, 51 AD3d 897;  

Roll-Up Gate at Store Entrance

Second Dept. 2019. 240(1) Liability Imposed. Repairing Store’s Broken Roll-Up Gate. Plaintiff struck when a “differential block and chain” as he & coworkers preparing a hoisting apparatus to remove & replace broken roll-up gate.  Activity of the removal of old roll-up gate & installation of  new roll-up gate is a repair within 240(1). Statutory requirement that workers be provided with proper protection extends not only to the hazards of building materials falling but to hazards of defective parts of safety devices falling from elevated level to ground. Defendants liable whether coworker dropped the differential while preparing to use hoisting apparatus to remove old roll-up gate or the differential fell because it was inadequately secured. Barrios v. 19-19 24^th Ave. Co., LLC, 169 AD3d 747;

Refrigeration System

Second Dept. 2007. 240(1) Liability Imposed. Plaintiff, refrigeration technician, sent to refrigerated warehouse in response to emergency call as to refrigeration malfunction that took 29 hours to repair. Such work involved requiring, installing a “tattletale relay,” & replacing standard thermostat with digital electronic thermostat. Such activity constituted repair work. Juchniewicz v. Merex Food Corp., 46 AD3d 623;

Third Dept.

Repair Work. 240(1) Liability Imposed.

Plumbing Work

Third Dept. 2021. 240(1) Liability Imposed. Plaintiff responding to isolated & unexpected event, i.e., to address a low/no water pressure at a store caused by municipal water break. He fell off a ladder engaged in work. It was repair work. Eherts v. Shoprite Supermarkets, Inc., 199 AD3d 1270; 

Electrical Work

Third Dept. 2020. 240(1) Liability Imposed. Repairing Electrical Circuit. Plaintiff hired to troubleshoot & repair nonfunctioning overhead lighting system in the cold storage area of defendant’s shop. Cause of problem was not the light bulbs, light switch or the circuit breaker. Plaintiff fell from a ladder performing such work. Markou v. Sano-Rubin Construction Co., Inc., 182 AD3d 674 (2020); 

Door

Third Dept. 2021. Repair Work. 240(1) Imposed. Repairing a Door. As a door was so badly damaged by an accident earlier in the day that plaintiff and coworkers were unable to close it in the normal fashion & had to manipulate the door in an effort to close it & secure the building, it was an emergency repair, not maintenance. Russo v. Van Dale Props., LLC, 200 AD3d 1470;    

HVAC

Third Dept. 2009. Replacing Cracked Belts in HVAC System Constituted a “Repair.” 240(1) Liability Imposed. Replacing cracked belts to HVAC system. Defendants had not provided maintenance to HVAC system for over 3 years, leaving it nonfunctional & in serious state of disrepair. Plaintiff was troubleshooting & fixing problems he encountered with HVAC system. He was not merely replacing worn out parts.  Alexander v, Hart, 64 A.D.3d 940.

Fourth Dept. Repair Work. 240(1) Liability Imposed.

 AT&T Tower

Fourth Dept. 2016. Investigating Malfunction at AT&T Tower. Plaintiff’s employer hired by AT&T to service its towers & plaintiff dispatched to a site to investigate & remedy an alarm indicating subject tower not functioning properly. Plaintiff climbed 180-foot tower as part of investigation to examine whether malfunction related to one of 6 mounted amplifiers (TMAs). To observe the TMA, plaintiff connected his shock absorbing lanyard to the tower. He then proceeded to a boom and used two slings or chokers to lower himself to the TMA, which was 4 feet below the boom. While engaged in such work, plaintiff grabbed the slings to pull himself upward. However, he slipped & both slings latched around his wrist caused a sudden jerk & pull movement, causing injury. Delineating between routine maintenance & repairs is frequently a close, fact driven issue & such distinction depends upon whether item being worked on was inoperable or malfunctioning prior to commencement of work & whether work involved replacement of components damaged by normal wear & tear. Here, plaintiff testified he & coworkers were dispatched to a tower only when in need of a repair. Cullen v. AT&T, Inc., 140 AD3d 1588;

Commercial Freezer

Fourth Dept. 2011. 240(1) Not Dismissed.  Working on Commercial Freezer. Plaintiff fell from ladder while working on commercial freezer at ski resort. Held that plaintiff engaged in repair work. Where a person is investigating a malfunction, efforts in furtherance of that investigation are protected activities under 240(1). Ozimek v. Holiday Val., Inc., 83 AD3d 1414;

Door

Fourth Dept. 2010. 240(1) Liability Imposed. Replacing Premature Deteriorated Parts. Plaintiff replacing bearing brackets on large garage door while working on scissor lift. While engaged in such work, garage door opened, struck the scissor lift, causing plaintiff to fall. Garage doors installed only weeks before & new bearing brackets were required as the previously installed bearing brackets wearing down prematurely. Such premature deterioration cannot be deemed normal wear and tear such that replacing the brackets would constitute routine maintenance. Dean v. City of Utica, 75 AD3d 1130; 

Fourth Dept. 2007. 240(1) Liability Imposed. Overhead Door. Work being performed by plaintiff at the time of the accident, i.e., the clamping of a broken torsion spring that prevented proper functioning of the overhead door of a storage building at defendant’s nursery complex, constituted the repair of a building rather than routine maintenance. And as such, was protected under 240(1). Brown v. Concord Nurseries, Inc., 37 AD3d 1076;

Lift Station

Fourth Dept. 2010. 240(1) Liability Imposed. Troubleshooting Uncommon Lift Station Malfunction. Distinguishing between routine maintenance & repairs depends upon whether the item being worked on was inoperable or malfunctioning prior to the commencement of the work & whether the work involved the replacement of components damaged by normal wear & tear. While defendant contended injury-producing work was an inspection of a lift station, rather than a repair of that facility, it is not consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work.  Plaintiff injured while “troubleshooting” an uncommon lift station malfunction. Pieri v. B&B Welch Assoc., 74 AD3d 1727;

Canal Signal Lamp Fourth Dept. 2009. 240(1) Liability Imposed.Non-Functioning Canal Signal Lamp. Repair Work. Plaintiff fell from elevated platform while repairing non-functioning signal lamp at a lock on Erie Canal. To establish plaintiff was performing repair work within the ambit of 240(1), as opposed to routine maintenance, plaintiff must establish the building or structure being worked upon was inoperable or not functioning properly. Plaintiff established signal light not functioning because of a broken lens, & plaintiff engaged in repairing broken lens when accident occurred. Plaintiff established such lens not typically require replacement as result of normal wear & tear. Broken lens prevented proper functioning of signal light, which was required in order for the canal to be utilized by boats. As such, such work constituted a “repair” under 240(1), rather than routine maintenance. Buckman v. State of NY, 64 AD3d 1137;    

December 3. LABOR LAW 240(1). MARITIME ACCIDENTS.

Comment. 240(1) can be imposed for a maritime accident. “There is no threat to Federal maritime law sufficient to displace NY’s labor law, even though 240(1) may impose strict liability.”

Court of Appeals

240(1) Applied to Maritime Accidents

Court of Appeals

Court of Appeals. 2000. 240(1) Liability Imposed. Plaintiff working from a float stage in navigable waters that was secured to the land-based transfer station. Plaintiff cutting timber from the bulkhead. Passing tugboat created turbulence causing movement of float stage. The timber struck plaintiff. New York’s Labor Law enacted to protect health & safety of workers. It will not interfere with maritime law or unduly hamper maritime commerce. There is no threat to Federal maritime law sufficient to displace NY’s labor law, even though 240(1) may impose strict liability. As strict liability is not wholly at odds with Federal maritime law no reason for labor law to be displaced. Cammon v. City of NY, 95 NY2d 583;

First Dept.

First Dept. 2010. 240(1) Liability Imposed. Plaintiff working under a pier when wave action caused floating stage on which he was kneeling to drop while he was sawing a board. Such drop caused the board to fall on top of plaintiff. Given that the swing in elevation of the stage due to tides & waves was understood by all as a risk of this particular construction site, the accident could not have occurred without the differential in elevation between plaintiff & board above him. As such, accident is within protection of 240(1). Keane v. Chelsea Piers, LP, 71 AD3d 593;  

First Dept. 2005. 240(1) Liability Imposed. Fall Into Hole on Barge. Plaintiff injured while working aboard barge. While assisting coworker open sliding door, plaintiff stepped onto plywood covering a hole in center of barge. As plaintiff did so, plywood slid from underneath him, causing fall into the hole. Claims against Con Edison, lessee of pier & D’Onofrio, the GC, not involve maritime commercial transaction & allowing their assertion posed no threat to uniformity of Federal maritime law sufficient to displace application of important State health & safety measure. Plaintiff, while engaged in excavation & repair of East 214^th Street Pier, exposed to gravity related risk without being provided proper safety devices. Olsen v. James Miller Mar. Serv., Inc., 16 AD3d 169;

Second Dept.

240(1) Liability

Second Dept. 2013. 240(1) Liability Imposed. Failure to provide a proper safety device to prevent plaintiff from falling through a hole in the deck of ship’s cargo hold. Durando v. City of NY, 105 AD3d 692;

Second Dept. 2011. 240(1) Liability Imposed. Plaintiff & coworkers moving portable generator weighing 150-200 pounds from one bridge pier to another. As no cranes available, such generator was to be moved by tugboat. As coworkers lifted generator to the lip of the pier, plaintiff, who was on the tugboat, attempted to steady it from the deck of the boat. However, generator slipped toward plaintiff, caught on his tool belt, pulling him to the deck, causing injury to his back. 5 foot elevation between the pier & deck of the boat plaintiff standing on was sufficient elevation related risk triggering 240(1). Court rejected argument this was routine hazard typically associated with construction site. Harrison v. State of NY, 88 AD3d 951;

Working on Pier

Second Dept. 2009. 240(1) Liability Imposed. Plaintiff working on a pier that was a raised surface that was itself further elevated above the river by precast concrete beams of varying heights. Plaintiff injured as he attempted to lower himself from one concrete beam to the next. His glove became caught on piece of rebar, which him dangling 6-12 inches above the next concrete beam. While provided with life preserver, he was not provided with any safety devices. Triola v. City of NY, 62 AD3d 984;   

Boat Repair Work. Ancillary Work.

Second Dept. 2004. 240(1) Liability Imposed Plaintiff tripped on hose & fell over the side of vessel at an area where a wall surrounding vessel’s deck was removed. Plaintiff, through his employer, performing work under a contract requiring a land-based alteration of a vessel. Where plaintiff was walking to retrieve additional solder, he was performing duties ancillary to the repair, reconstruction, or alteration of the vessel & as such, protected by 240(1). Aguilar v. Henry Marine Service, Inc., 12 AD3d 542.

December 2. Not a “Premises Owner” Under Labor Law 240(1) & 241(6)

Non-title holder.

Out of possession lessee having no control over the work.

No interest in property.

An owner of the premises where a construction accident occurs has a non-delegable obligation to provide a safe workplace.  That the owner did not control or supervise the injury producing work, while a defense to Labor Law §200, is not a defense to Labor Law §240(1) and §241(6).    

However, a premises owner can avoid 240(1) and 241(6) liability by establishing it had no interest in the premises where the accident occurred.        

Court of Appeals. 2009. Although accident occurred on HCIDA’s property, it did not contract with Village of Frankfort to have sewer lateral installed. It had no choice but to allow Village to enter its property pursuant to a right of way, & it did not grant Village an easement or other property interest creating the right of way. Although the Church agreed to pay for the cost of materials Church had no interest in the property over which the sewer lateral was place. Scaparo v. Village of Ilion, 13 NY3d 864.

A municipality owning the premises where an accident occurred may avoid liability in establishing it had no involvement with the project.

Second Dept. 2019. 240(1) Dismissed. Premises owner not in control over project. Following a statutory hearing pursuant to General Municipal Law Section 50-h, at which plaintiff provided sworn testimony, City of NY moved to dismiss Labor Law 200, 240(1) and 241(6), as well as common law negligence. City established NY State Dept. of Transportation was in charge of the project. City of NY was not a party to the contract governing the project; City performed no construction; City not hire plaintiff’s employer & did not supervise, direct, or control any aspect of the work. Coelho v. City of NY, 176 AD3d 1162;

Also, determine whether the premises owner owned the structure on the land causing the accident. Orange & Rockland Utilities established it did not own, control or maintain live overhead electrical wires causing the accident. Rather, such lines owned by third-party defendant, East Ramapo School District. Weitz v. Anzek Constr. Corp., 54 AD3d 941 (2^nd Dept. 2008).

Second Dept.

No Evidence Defendant Owned Property

Second Dept. 2024. Defendant established it could not be held liable under 240(1) as it did not own the subject property nor could it be considered an owner of subject property under 240(1). Ragusa v. Drazie’s Farm II, LLC, 2024 NY Slip Op 01944;

Second Dept. 2016. Plaintiff failed to make a showing that Y-M owned or had any nexus to the property where the accident occurred. Churaman v. C&B Elec., Plumbing & Heating, Inc., 142 AD3d 485; 

Second Dept. 2015. St. Andrews Ukranian Orthodox Church demonstrated that for purposes of the Labor Law, it was not an owner of the property where the accident occurred. Piatek v. Oak Dr. Enters., Inc., 129 AD3d 812;

Property Titleholder. Not Contract For The Work. No Interest in The Property. 240(1) Dismissed.

Court of Appeals.

Court of Appeals. 2009.  Titleholder. No interest in property. Not contract for the work. 240(1) Dismissed. It has been held the term “owner” is not limited to titleholder of the property where accident occurred & encompasses a person having an interest in the property & who fulfilled the role by contracting to have work performed for its benefit. Although accident occurred on HCIDA’s property, it did not contract with Village of Frankfort to have sewer lateral installed. It had no choice but to allow Village to enter its property pursuant to a right of way, & it did not grant Village an easement or other property interest creating the right of way. Although the Church agreed to pay for the cost of materials Church had no interest in the property over which the sewer lateral was place. Municipal employees working at the site testified no representative of the Church was present or gave directions during excavation work. Village assumed responsibility for installing lateral sewer line. Scaparo v. Village of Ilion, 13 NY3d 864;  

First Dept.

Never Owned The Premises

First Dept. 2024. Casur established it was not a proper Labor Law defendant through affidavit of its president who wrote that Casur had not been in business for over 10 years, had never owned the subject property or had any connection to the property and did not direct, supervise or control any construction work at the property. Building permits submitted in opposition to Casur’s motion were inadmissible hearsay. Even if the permits could properly be considered, they were insufficient to raise issue of fact as to Casur’s involvement with the construction work as permits not mention Casur. Loja v. 133 Lincoln LLC, 2024 NY Slip Op 02504;

No Property Interest. Not Contract to Have Work Performed & No Authority at Work Site.

First Dept. 2013. Not an Owner. Plaintiff excavated roadway to install telecommunications equipment.  Using a power saw to cut into a street, plaintiff struck a cable encased in concrete conduit, owned by Con Ed, which electrocuted him. Con Ed and Verizon established they cannot be held liable under 241(6) as neither was an owner, contractor or statutory agent. Assertion Con Ed had property interest in the accident site below ground was false. Although a defendant can be deemed an owner for purposes of 241(6) without holding title to the property, Con Ed not an owner under such circumstances as there is no evidence it contracted to have the work performed or had authority to work site. Although Verizon engaged plaintiff’s employer to perform excavation work, plaintiff’s employer was the only entity with requisite excavation permit & Verizon did not have the right to control the site. Addonsio v. City of NY, 112 AD3d 554;

Titleholder Removed From All Building Authority by Government

First Dept. 2007. 240(1) Dismissed Against Building Owner. DEP Took Charge of Building. City of NY’s Dept. of Environmental Protection (DEP), not defendant owner, evacuated owner’s lower Manhattan building, solicited bids for decontamination work because of September 11, 2001 attacks, hired plaintiff’s employer, an asbestos contractor, & in charge of environmental cleanup of building. No one, other than DEP’s personnel allowed on the premises. As such, defendant, building owner not subject to liability as owner under 240(1). Campoverde v. Liberty, LLC, 37 AD3d 275;

Second Dept.

Municipality

Second Dept. 2019. 240(1) Dismissed. Premises owner not in control over project. Following a statutory hearing pursuant to General Municipal Law Section 50-h, at which plaintiff provided sworn testimony, City of NY moved to dismiss Labor Law 200, 240(1) and 241(6), as well as common law negligence. City established NY State Dept. of Transportation was in charge of the project. City of NY was not a party to the contract governing the project; City performed no construction; City not hire plaintiff’s employer & did not supervise, direct, or control any aspect of the work. Coelho v. City of NY, 176 AD3d 1162;

Not Owner of Utility Pole. Electrical Wires

Town Not Owner of Utility Pole. 240(1) Dismissed.

Second Dept. 2019. 240(1) Dismissed. Plaintiff wrapped a metal wire attached to a utility pole around a ladder. As he climbed down the ladder, metal wire broke causing a fall from ladder. Although the property on which utility pole was located was jointly owned by defendants Town of South Hampton & Village of Quogue, Town did not own utility pole or the wires. Term “owner” is not limited to titleholder of the property where accident occurred & encompasses a person having an interest in the property and who fulfilled role of owner by contracting to have work performed for its benefit. A noncontracting owner, one who does not hire contractors or agents to accomplish the work, will be liable under Labor Law only where there exists some nexus between owner & worker, whether by lease agreement or grant of easement or other property interest. Paul v. Village of Quogue, 178 AD3d 942;  

Utility Company Not Own Overhead Electrical Wires. 240(1) Dismissed.

Second Dept. 2008. 240(1) Dismissed. Orange & Rockland Utilities established it did not own, control or maintain live overhead electrical wires causing the accident. Rather, such lines owned by third-party defendant, East Ramapo School District. Weitz v. Anzek Constr. Corp., 54 AD3d 941;

Third Dept.

Cable Company Not Owner of Utility Pole. 240(1) Dismissed.

Third Dept. 2010. Time Warner Not Own Utility Pole. Leaseholder Interest Not Enough For 240(1) Liability. Plaintiff engaged in transferring wires from defective utility pole to new pole & remove defective pole. While plaintiff performing such work on utility pole, pole fell over, causing accident to plaintiff. After accident, plaintiff noticed dry rot in pole that fell. Time Warner’s cable ended at defective pole, requiring a down guy wire attached to a ground anchor. Line construction supervisor with more than 30 years experience with utility poles, eliminated anchor as possible proximate cause of accident. He also stated anchor not defective, appeared fairly new & guy wire was of appropriate length. Time Warner neither contracted for or benefitted by plaintiff’s work. While Time Warner submitted evidence it leased space on defective pole pursuant to pole attachment agreement, plaintiff admitted that on day of accident, not working on & did not intend to work on, Time Warner’s equipment. As such, Time Warner’s leaseholder interest in the pole, alone, insufficient to impose owner liability under 240(1) and 241(6).  Wheeler v. Citizens Telecom Co. of NY, Inc., 74 AD3d 1622; 

Fourth Dept.

Town Not Liable Under 240(1). Accident Occurred on Private Property.

Fourth Dept. 2014. Town Not “Owner” Under 240(1) and 241(6).  Accident Occurred on Private Property. Accident occurred when backhoe plaintiff was operating fell into a ravine. Town hired plaintiff’s employer to replace sidewalk abutting Hershey’s driveway &perform paving work on such driveway. Plaintiff parking backhoe in landing area of property when it rolled into ravine. Well settled term “owner” is not limited to titleholder of property where accident occurred & encompasses a person having an interest in property & who fulfilled role of owner by contracting to have work performed for its benefit. Here, accident occurred well outside of Town’s right of way & Town had no other interest in or legal authority over landing area, located entirely on Hershey’s private property. Town established it was Kenneth Hershey, not Town, who gave plaintiff permission to park in landing area; Town had no authority to grant such permission to plaintiff, & Kenneth Hershey directed plaintiff where to park. Town established landing area not part of construction site. No work being performed in landing area. Town showed not necessary for plaintiff to park backhoe in landing area. Town provided plaintiff with parking in municipal garage, located few miles from work site. Plaintiff testified he chose landing area as it was closer to work site. Faruggia v. Town of Penfield, 119 AD3d 1320;

Town Not Owner of Vacant Home Even Though Contracted For Work. No Interest in Property.

Fourth Dept. 2017. Town Not “Owner” of Vacant House Even if Contracted to Have Repairs Performed. Town contracted with plaintiff’s employer to perform work on vacant home under Town’s statutory authority to repair vacant homes within its borders. Plaintiff standing on ladder while replacing a board on exterior of the house. When bees flew out of a hole in house, plaintiff fell descending the ladder. For purposes of 240(1) term “owner” is titleholder of property as well as person having interest in the property & who fulfilled the role of owner by contracting to have work performed for its benefit. Here, Town not hold title to property nor did it have any interest in property. Even if Town was an owner, it would be entitled to Homeowners Exemption. Berner v. Town of Cheektowaga, 151 AD3d 1636;

November 28. Assessing Subcontractor’s 240(1) Liability: Control & Supervision of Injury Producing Work.

Second Dept. decision, Mejia v. 69 Mamaroneck Rd. Corp., 2024 NY Slip Op 05974, issued on November 27, held that a subcontractor at a work site was not liable under Labor Law §240(1). §240(1) is confined to premises owners, general contractors (GC) and agents of premises owners and GCs.  An “agent” is an entity that controls and supervises the injury producing work.  In Meija, plaintiff fell through an opening on a flat roof.  Framing contractor on the project, WR Home Builders, according to deposition testimony from its president, created the hole in the roof for a chimney.  However, the president also testified WR Home Builders covered the chimney opening with three-quarter-inch plywood and securing such plywood with nails before the roofers, including plaintiff, began their work.

WR Home Builders was not a premises owner or the project’s GC.  As such, the only way 240(1) liability could be imposed was if WR Home Builders acted as an “agent” of the premises owner or the project’s GC.  It was not such an “agent” as WR Home Builders did not control or supervise plaintiff’s work or the “plaintiff’s safety practices.” In assessing whether an entity has §240(1) or §241(6) liability, where such entity is not the premises owner or GC, did the entity exercise supervision and control over the injury producing work? 

A 2022 Second Dept. decision. Mogrovejo v. HG Hous. Dev. Fund Co., Inc., 207 AD3d 457, also involved a framing company. Plaintiff performing framing work on a building under construction stepped on unsecured wooden beam, which flipped over & fell out from underneath him, causing him to fall 15 feet to the floor below. Plaintiff made prima facie showing of entitlement to judgment on 240(1) action by submitting transcript of his deposition testimony, his affidavit, & affidavit of coworker witnessing the accident. Evidence showed defendants failed to provide plaintiff with adequate safety devices. South Ocean Framing Corp. was a statutory agent of owner & GC as it had the authority to supervise and control particular work in which plaintiff was engaged at time of accident. Where the subcontractor is plaintiff’s employer, it is likely such subcontractor is an “agent” of the premises owner or GC.

Assume in Meija that WR Home Builders failed to place plywood over the roof opening for the chimney, thereby creating the dangerous condition. That WR Home Builders created the dangerous condition on the roof does not alter the fact that it was not an “agent” of the premises owner or GC. For 240(1) liability, whether a subcontractor is an “agent” is determined by whether it controlled and supervised plaintiff’s work.

Below are other decisions of the Second Dept. finding no §240(1) or §241(6) subcontractor liability.  

Subcontractor Performing No Work in Accident Area. 240(1) & 241(6) Dismissed.

Second Dept. 2023. Triera Contracting established judgment as to dismissal of Labor Laws 240(1) & 241(6) by demonstrating through president’s affidavit & business documents  that it had no supervisory control or authority over work being done in the area where plaintiff’s accident occurred as Triera erected scaffolding only on exterior of building. For same reason, Triera could not be liable for common law negligence for improper installation of the scaffold from which plaintiff fell. Mitchell v. 148^th St. Jamaica Condominium, 221 AD3d 596;

Second Dept. 2022. 240(1) Dismissed. Subcontractor Not a GC. Defendant established it was not GC or agent of the owner on any project in Valley Stream on the date of the accident. Plaintiff testified accident location was in Valley Stream. Ortega v. Panther Siding & Windows, 204 AD3d 937;     

Not Supply Ladder

Second Dept. 2018. 240(1) Dismissed. AM&G established it was not agent of owner or GC with regard to plaintiff’s work as it had no authority to supervise or control plaintiff’s work, it did not supply the ladder from which plaintiff fell & it had no control over the work site. Cusumano v. AM&G Waterproofing, LLC, 160 AD3d 922;  

Contractor Exited Work Site Before Accident. 240(1) Dismissed.

Second Dept. 2023. Condos Not An Agent. 240(1) Dismissed. Condos Brothers established it was not an agent of owner or contractor at time of plaintiff’s accident. Its supervision responsibilities on the worksite limited to those times when its work was in progress & that it had left the worksite several weeks prior to plaintiff’s accident after completing its work to satisfaction of owner & inspector from Town of Huntington.Bonkoski v. Condos Bros. Constr. Corp., 216 AD3d 612;

Not Statutory Agent. Work Confined to Obtaining Work Permits or Where Entity Listed on Work Permits.

Second Dept. 2011. Obtaining Work Permit Insufficient to be GC or Agent of GC.  REMS was neither the GC nor agent subject to liability under the Labor Law. REMS did not supervise or control injury producing work. Only function REMS performed was obtaining a work permit. The fact that REMS was listed as the contractor on the work permit, without more, was insufficient to raise a triable issue of fact whether REMS was the contractor at the subject site. Guclu v. 900 Eighth Ave. Condominium, LLC, 81 AD3d 592;

Second Dept. 2008. Named on Work Permits Insufficient to be Statutory Agent. Defendant established summary judgment as to Section 200, 240(1), 241(6) and common law negligence by establishing that plaintiff’s employer was hired as the contractor at the work site and defendant had no authority to enforce safety standards, hired no subcontractors nor controlled the work and provided no equipment. That defendant listed as contractor on work permits, & allegation that after the accident, the defendant hired a plumber to sign off on plumbing work at the site, without more, insufficient to raise a triable issue of fact as to whether defendant was a contractor. Huerta v. Three Star Constr., Inc, 56 AD3d 613;

Not Statutory Agent. Entity Hired For Separate Project From Injury Producing Work at Premises.

Second Dept. 2014. 240(1) Dismissed. Contractor Not Agent of Owner. Plaintiff injured installing AC system in newly constructed extension of house owned by Julia Coen. Coen hired defendant Joseph Contracting to construct extension & hired plaintiff’s employer to install AC system. Plaintiff, while engaged in such work, fell when a wooden spool, which was used by other workers as makeshift step, gave way. A contractor may be held liable under 240(1) as agent of owner where it had authority to supervise & control injury producing work. Joseph Contracting established it was neither a GC nor an agent of premises owner as to plaintiff’s work. Caizzo v. Mark Joseph Contr., Inc., 119 AD3d 718;   

Second Dept. 2010. Subcontractor Not Statutory Agent or GC. 240(1) Dismissed. Plaintiff was employee of Complete Construction Alternatives & instructed to finish dormers on roof of a garage. Plaintiff fell from scaffold attached to the roof of the garage. Creative Pool established that Complete Construction was hired as GC for injury producing work. Creative Pool was contractor for construction of homeowner’s pool, a separate project from garage project. Creative Pool not supervise or control plaintiff’s work, provided no equipment to plaintiff, & not present at site on accident date. Fact that Creative Pool was listed as contractor for erection of the garage on the work permit, without more, insufficient to raise triable issue of fact as to whether it was the GC. Kilmetis v. Creative Pond & Spa, Inc., 74 AD3d 1289;

Not Statutory Agent. Not Select or Pay Contractors; Not Schedule or Monitor Work & Not Obligated to Ensure Safety Guidelines Followed.

Second Dept. 2010. 240(1) Dismissed. Subcontractor Not Statutory Agent. To hold contractor such as DRA liable under 240(1) and 241(6), there must be a showing it had authority to supervise & control work giving rise to accident. Determinative factor on issue of control is not whether a subcontractor furnishes equipment but whether it has control of the work being done & authority to insist proper safety devices be followed. DRA was not a GC or statutory agent as the University, not DRA, selected, paid, and coordinated the contractors, scheduled and monitored the work and ensured its safety guidelines were followed, & retained authority to stop the work. Temperino v. DRA, Inc., 75 AD3d 543;

Second Dept. 2007. 240(1) Dismissed Against Subcontractor. Contract Terms. Witte hired several contractors to renovate his home, including JWH Contracting to perform carpentry work & Elite to perform electrical work. Elite was plaintiff’s employer. Plaintiff was using Elite’s ladders & fell from a ladder. JWH was neither a GC nor statutory agent under 240(1). Owner Witte paid subcontractors. JWH had its own contract with Witte & such contract did not give Witte authority to insist proper safety practices be followed by other contractors. Employees of JWH were not present at home when accident occurred. While JWH discussed where outlets & wiring were to be placed, Elite controlled how they were to be installed. Aversano v. JWH Contr., LLC, 37 AD3d 745;

Mere General Supervision of Work Site. 240(1) Dismissed.

Second Dept. 2014. General Supervision. 240(1) Dismissed. Subcontractor Not Statutory Agent of Owner or GC.  Exercised No Control Over Plaintiff’s Work. Plaintiff while working using stilts suffered fall to the ground as stilts became entangled in electrical cable or wire on floor. Draghi hired to perform framing work & perform general supervision of project. Draghi merely assumed a role of “general supervision,” pursuant to which it checked the progress of the work & reported to Magestic, who was constructing the home. Draghi demonstrated it did not have the ability to control activity bringing about plaintiff’s injury.  As such, Drahi could not be liable under 241(6) as it was not an owner, general contractor or statutory agent of owner or general contractor. Gonzalez v. Magestic Fine Custom Home,. 115 AD3d 796; Second Dept. 2006. General Supervision of worksite insufficient to find entity was GC or statutory agent. Linkowski v. City of NY, 33 AD3d 971;

November 27. Falling Object.  Plaintiff Not Required to Show Where The Object Fell From in Order to Establish Labor Law  240(1) Liability.

First Dept. decision decided November 21, 2024, Fromel v. W2005/Hines W. Fifty-Third Realty, LLC, 2024 NY Slip Op 05828, imposed Labor Law 240(1) where a construction worker was struck by a falling 4-inch by 4-inch formwork support beam that was 10-15 feet in length. Such beam fell from an elevated platform. It was held the beam required securing.  As the beam was not properly secured, there was 240(1) liability. Also, the elevated platform was not guarded by a safety device such as netting or enclosure.

While it was not disputed that plaintiff was struck by the beam to the back of his head and neck, defendants argued 240(1) was not violated as plaintiff and his coworker did not see where the beam came from. The Court rejected such argument, “… plaintiff is not required to show the exact circumstances under which the object fell, provided plaintiff can demonstrate that the lack of a protective device called for under 240(1) proximately caused the injuries.”

It was held a plaintiff’s prima facie case is not dependent on whether plaintiff observed what hit him, or whether the object was dropped or fell in some other manner.  In support of the holding, the decision cited Harsanyi v. Extell 4110 LLC, 220 AD3d 528 and Malan v. FSJ Realty Group II LLC, 213 AD3d 541, both First Dept. decisions. Where a worker is struck by a falling object, plaintiff’s prima facie case does not require establishing where the object fell from. It is enough to show that the falling object should have been secured. Note that in Fromel, it was held that in addition to or a as part of the failure to secure, there was no netting beneath the elevated platform.  In those situations where work is ongoing beneath work on elevated platforms, netting prevents injury from falling materials and equipment.

November 26. With 240(1) Violated, Plaintiff’s Actions Cannot be Sole Proximate Cause of Accident.

First Dept. 2024 decision, Dolcimascolo v. 701 7^th Prop. Owner, LLC, 2024 NY Slip Op 05887, arose out an accident where a steel beam was inadvertently caught on a crane hook during hoisting, causing it to slide off the truck where it had been placed, striking plaintiff. In defense of the 240(1) claim, defendant asserted plaintiff was the sole proximate cause of the accident because he was in an unauthorized work area when struck by the beam. 

The Court held that even if plaintiff was in an authorized area when struck by the beam, such omission only amounted to comparative negligence.  Comparative negligence is not a defense to a 240(1) violation.  Here, there was a 240(1) violation where plaintiff was struck by a falling object. Once 240(1) liability is established, plaintiff’s actions, even if negligent, will not defeat the 240(1) claim.  The 240(1) violation was the sole proximate cause of the accident.

If a defendant has evidence of plaintiff’s negligence, such negligence can only be the sole proximate cause of the accident if there is no 240(1) liability.      

Court of Appeals. Blake v. Neighborhood Hous. Servs. Of NY City, 1 NY3d 280, 290; 2015. Barreto v. MTA, 34 NE3d 815;

First Dept. 2022. Cazho v. Urban Bldrs. Group, Inc., 205 AD3d 411; 2022. Gutierrez v. Turner Towers Tenants, 202 AD3d 437;  2008.  Kielar v. Metropolitan Museum of Art, 55 AD3d 456;

Second Dept.  Thorpe v. One Page Park, LLC, 208 AD3d 818; Melchor v. Singh, 90 A.D.3d 866. 2011.

Third Dept. 2022.  DeGraff v. Colontonio, 202 AD3d 1297; 2021. Begeal v. Jackson, 197 AD3d 1418; Fourth Dept. 2013. Court’s conclusion that plaintiff established, as a matter of law, that defendants violated 240(1), precludes a finding plaintiff’s conduct was sole proximate cause of accident. Miles v. Great Lakes Cheese of NY, Inc., 103 AD3d 1165;

November 22. De Minimis Distance of Falling Object. Force of Gravity Analysis as to 240(1) Liability.

In a First Dept. decision, Cicale v. Hines 1045 Ave, of the Ams. Invs. LLC, 2024 NY Slip Op 05826, decided November 21, plaintiff was injured while trying to level a “door buck” and a 2 to 6 inch metal top track of a door frame fell or shifted approximately 2 to 4 inches downward onto his hand, causing the hand to be immobilized. Defendants’ motion to dismiss the Labor Law 240(1) claim was denied, as defendants failed to show the accident did not arise from an elevation-related risk. 

The 2 to 4 inch fall constitutes a de minimis distance. In a falling object case, such distance requires a force of gravity analysis in determining whether Labor Law 240(1) was violated, pursuant to the Court of Appeals decisions of Runner v. New York Stock Exchange,13 NY3d 599 (2009) and Wilinski v. 34 E. 92^nd Housing Fund Corp.,18 NY3d 1(2011).  Such force of gravity analysis requires knowing the approximate weight of the object falling a de minimis distance or the type of injury sustained.                

The court cited the 2015 First Dept. decision, Czajkowski v. City of NY, 126 AD3d 543, where plaintiff used a Sawzall to remove a 10-foot high, 8-12 foot wide window frame by removing the bottom first and then the top half. When the unsecured top half of the window fell out of the wall, it crushed plaintiff’s hand. Plaintiff was granted summary judgment on the 240(1) cause of action. While the weight of the falling window frame was not provided, use of the term “crush” indicated existence of a sufficient force of gravity for a 240(1) violation. The Cicale decision is a reminder that where a “falling object” travels a de minimis distance before striking a worker, determining 240(1) liability requires knowing the approximate weight of the falling object or the type of injury indicates existence of a sufficient force of gravity. Here, as the hand was “immobilized” by the falling object, it would seem the falling object had a sufficient force of gravity to raise an issue of fact as to whether 240(1) was violated.

November 21. Recalcitrant Worker/Sole Proximate Cause Denied as No Anchorage Point For Safety Harness on Building’s Roof

First Dept. in Travalja v. 135 W. 52^nd St. Owner LLC, 2024 NY Slip Op 05780, decided on November 19, 2024, denied the defense that a worker falling 46 stories after falling over an 18-inch parapet wall on a roof, was the cause of the accident by failing to use safety devices.  As provided in previous posts, the defense that a worker caused the accident by failing to use safety devices. i.e., worker was recalcitrant, requires defendant to establish the following:

Plaintiff had adequate safety devices available;

Plaintiff aware of availability of safety devices;

Plaintiff made aware of employer’s expectation of plaintiff using safety devices;

That for no good reason, plaintiff chose not to use such available safety devices and had plaintiff not made the choice to not use such safety devices, accident would not have occurred.

In Travalja, it was noted defendants offered no evidence of the availability of anchor points, lifelines, or rope grabs in the area where the fall occurred. It was held defendants failed to raise an issue of fact of whether the worker “knew the proper tie-offs for his safety harness were available but chose not to use them for no good reason.” Wearing a safety harness offers no protection unless tied to an anchorage point, which ensures a worker only falls a minimal distance.

Recalcitrant worker defense was also denied in Travalja as defendants failed to establish that the safety equipment was available in the areas where the worker fell.  As listed above, defendant must show plaintiff was aware of the availability of safety devices.  This requires physically placing such safety devices in the area where the worker is performing work.

Where there may not be a structure on a roof to be used as an anchorage point for a safety harness, a subcontractor must devise a type of device which the lifeline of a safety harness can be attached.  Again, wearing of a safety harness absent the safety harness anchored to something offers no protection against falls from elevated heights.  In Travalja, as there was no such device, 240(1) liability was imposed. The following decisions illustrate courts’ refusal to find a worker recalcitrant in the context of safety harnesses.

Workers Not Instructed to Wear Safety Harness.

Court of Appeals. 2010. 240(1) Liability Imposed. Workers Not Instructed to Wear Safety Harness. Plaintiff assigned to remove section of metal decking from second floor of building in preparation for installation of new flooring. Plaintiff cutting metal with 2 handed power saw, enlarging opening created by other workers. While holding both handles of saw, blade of saw jammed, propelling him forward through uncovered opening, landing on temporary floor between first & second floors. Assistant project manager testified safety harnesses with shock absorbing lanyards & retracting lanyards available at work site but could not say whether such safety devices were in accident area. Project manager testified standing order issued by project foreman that ironworkers have harness on & be tied off. However, project manager not recall whether such instructions given to ironworkers. 240(1) granted as plaintiff not recalcitrant worker. No evidence plaintiff knew where to find safety devices or that he was expected to use them. Gallagher v. NY Post, 14 NY 3d 83;

First Dept.

First Dept. 2024. 240(1) Liability Imposed. Failure to Tie Figure 9 Knot on Harness. Comparative Negligence. Plaintiff fell to ground while performing commercial window washing. Plaintiff wore a harness & remain attached to 2 ropes after tying off the ropes to anchor points. As an additional safety measure, plaintiff made sure the lifeline reached the ground. In support of their claim plaintiff’s conduct was sole proximate cause of accident, defendants relied on plaintiff admission that he forgot to tie a figure 8 knot at the end of safety line (together with a rope grab, a deceleration device) which is done as apart of fall system to prevent worker from hitting the ground. Despite plaintiff having failed to perform this safety measure, such omission was at most comparative negligence, which is not a defense to 240(1). Loaiza v. Museum of Arts & Design, 2024 NY Slip Op 03334;  

First Dept. 2017. 240(1) Liability Imposed. Not Recalcitrant Worker. Plaintiff erecting precast concrete panels for stadium seating. Wearing safety harness but not tied off. Only place plaintiff could tie off was below his feet. That plaintiff could have tied off to a “raker beam” was not relevant as plaintiff offered no evidence plaintiff instructed or knew to use place to tie off. Regardless of whether raker beam was appropriate tie-off point, as defendants offer no evidence plaintiff knew to tie off to it, his failure to do so cannot be sole proximate cause of accident. Anderson v. MSG Holdings, LP, 146 AD3d 401;

First Dept. 2012. Not Recalcitrant Worker. Not Instructed to Wear Harness. While defendants argued harnesses available at job site, evidence not show workers expected to, or instructed to, use harness while ascending or descending a ladder. Both GC’s field supervisor & president of plaintiff’s employer both testified harnesses not needed for roofing work, given parapet wall around roof. Eustaquio v. 860 Cortlandt Holdings, Inc., 95 AD3d 548;

First Dept. 2006. 240(1) Liability Imposed. Plaintiff Instructed to Only Wear Safety Harness at Working Height. Platformon which plaintiff working had no gate, requiring plaintiff to climb over 5-foot high wooden railing to gain access to 8-foot high metal ladder that led to ground. As plaintiff climbed over railing, platform shook, top rail broke, causing fall to ground. Plaintiff wore safety harness connected to 3-foot long safety line he attached to I-beam of structure he was working on. While he was wearing harness while climbing over railing, he detached it from safety line before starting his descent. He testified was instructed by employer to attach line to structure working on when he reached working height. Defendants asserted plaintiff should have attached 3-foot safety line to “something,” although they did not say what & such failure sole proximate cause. Such conclusory argument failed to raise issue of fact as to whether plaintiff disregarded instructions to use harness while alighting from platform. Allen v. NYC Tr. Auth., 35 AD3d 231;

First Dept. 2005. Not Recalcitrant Worker. 240(1) Not Dismissed. Plaintiff fell from unsecured ladder. While defendants established a Baker’s scaffold provided to plaintiff, no evidence plaintiff was instructed to utilize Baker’s scaffold or to avoid using the ladder. Beamon v. Agar Truck Sales, Inc., 2005 NY Slip Op 09476;

Owner Not Know Where Safety Harnesses Kept at Work Site

First Dept. 2013. Not Recalcitrant Worker. While building mezzanine floor by nailing plywood to beaming, plaintiff stepped through ceiling tile he believed to be plywood & fell to concrete floor below. Atlas failed to provide safety devices that would have prevented fall. While plaintiff’s employer testified safety harnesses available at site, owner not know where such harnesses were kept or whether plaintiff knew of their existence. Clavijo v. Atlas Terms., LLC, 104 AD3d 475;   

Worker’s Actions Not Proximate Cause of Accident

First Dept. 2017.Fall caused by missing guardrail. Plaintiff’s failure to tie lanyard to scaffold not sole proximate cause of accident. Wilk v. Columbia Univ., 150 AD3d 502;

First Dept. 2011. Defendant GC admitted no location to which harness could have been tied. As such, defendants failed to raise inference plaintiff’s failure to use safety harness sole proximate cause of accident. Affirmation of defendants’ attorney, asserting there were places to which a safety harness could have been tied, is entitled to no evidentiary weight. Even if plaintiff could be found recalcitrant for failing to use harness, defendants’ failure to provide proper safety equipment was a more proximate cause of accident. Berrios v. 735 Ave. of the Ams., LLC, 82 AD3d 552; 

First Dept. 2005. Although plaintiff temporarily removed his safety harness to mix mortar on a roof, sole proximate cause of accident was broken hook, causing a scaffold to fall when plaintiff was loading it with bucket of cement. Even if plaintiff partially at fault, worker’s contributory negligence not a defense to 240(1) cause of action. Moniuszko v. Chatham Green Inc., 24 AD3d 638;

Second Dept.

Failing to Hook Lanyard to Scaffold Comparative Negligence

Second Dept. 2024. While walking on scaffold, wooden plank on which he stepped broke, causing a fall. Plaintiff wearing safety harness with lanyard attached. Plaintiff not tie lanyard to scaffold frame while walking on the scaffold because he was carrying a pipe in one hand & a clamp in the other. As such, he was unable to unhook & rehook 4 foot long lanyard to travel 20 foot distance to a wall to assist coworker. As evidence established plaintiff subjected to an elevation-related risk of the wooden plank which suddenly broke, causing a fall, 240(1) was violated. As plaintiff established the 240(1) violation was a proximate cause of the fall, plaintiff’s comparative negligence, if any, was not a defense. Defendants presented no evidence plaintiff was recalcitrant in the sense he was instructed to tie & untie his lanyard to traverse the scaffold and refused to do so. Amaro v. NYC Sch. Constr. Auth., 2024 NY Slip Op 04052;

Plaintiff Not Instructed as to Safety Harness Use or Where Harnesses Kept at Work Site

Second Dept. 2018. Not Recalcitrant Worker. When plank on scaffold plaintiff was erecting broke, he fell 30 feet. Defendant contended plaintiff’s failure to wear safety harness sole proximate cause of his fall. However, no evidence plaintiff informed as to where harnesses kept or that he was instructed in their use. Rapalo v. MJRB Kings Highway Realty, LLC, 163 AD3d 1023;

Third Dept.

Not Recalcitrant Worker. Plaintiff Not Have to be Tied Off at Elevation Height Where He Fell.

Third Dept. 2010. 240(1) Liability Imposed. Safety harness not required to be tied off at the height at which plaintiff was working. Plaintiff, an ironworker, working on first story of structure undergoing renovation when he fell from a beam to concrete floor 15 feet below. While plaintiff wearing a harness lanyard, not tied off to anything. Plaintiff testified that according to his training as an ironworker, he was not expected to tie off when working at a height from which he fell & was told by supervisors he was not required to be tied off at that height. Plaintiff’s supervisor confirmed plaintiff not in violation of any job safety rules despite fact he was not tied off. OSHA regulations not require plaintiff to be tied off at the height from which he fell. Defendants’ assertions that common sense would have dictated use of the harness & that nothing precluded its use are unavailing as defendants submitted no evidence that plaintiff knew or should have known he was expected to anchor his safety harness & chose for no good reason not to do so. Murray v. Arts Ctr. & Theater of Schenectady, Inc., 77 AD3d 1155; 

Fourth Dept. Fourth Dept. 2018. 240(1) Liability Imposed. Defendant’s assertion of safety harnesses readily available at site, albeit not immediate vicinity of accident, denied. Plaintiff fell through roof while working on demolition project. 240(1) granted where plaintiff established defendants’ failure to provide adequate fall protection proximate cause of accident. Lord v. Whelan & Curry Constr. Servs., Inc., 166 AD3d 1496;

November 20. Where Contractual Indemnification is Based Upon Damages Arising From “Performance of The Work,” Entity Seeking Indemnity Must Still Obtain Dismissal of Labor Law §200.  

First Dept. in a decision issued on November 19, 2024, Travalja v. 135 W. 52^nd St. Owner LLC, 2024 NY Slip Op 05780, addressed whether an entity seeking contractual indemnification where the accident arose from the broad standard of “performance of the work” of plaintiff’s employer, must show it was free of negligence.  The accident occurred when the owner of Crowne Architectural Systems fell over an 18-inch parapet wall, plunging 47 stories to his death. New Line Structures, the project’s manager, sought contractual and common law indemnification from Crowne.

The decision noted, “The contract between New Line and Crowne contains an indemnification provision with a broad performance of the work clause, which was triggered because decedent fell while engaged in Crowne’s contractual work.” Even though indemnification was based upon an accident arising from Crowne’s “performance of its work,” New Line, to be indemnified by Crowne, was still required to establish it was not negligent. A defendant establishes it was free of negligence by obtaining summary judgment on the Labor Law §200 cause of action.

New Line’s summary judgment motion on the §200 cause of action was denied as a New Line employee testified he regularly visited the roof and was aware of the low parapet wall and lack of a guardrail presented a potential falling hazard. Absence of a guardrail was a dangerous condition, raising an issue of fact of whether the construction manager, New Line, had notice of such condition.

While contractual indemnification premised upon damages arising from the “performance of the work” is much broader than indemnification requiring a showing of negligence, do not forget that even under the “performance of the work” standard, the entity seeking such indemnification must first prevail on dismissing the §200 cause of action.  Such entity must establish it did not create the hazardous condition; did not have constructive notice of the dangerous condition; the accident did not arise from the entity’s means and methods of the accident injuring work and did not supervise or control the injury producing work.  Only when the entity establishes it is entitled to dismissal of the §200 claim, will a court consider whether the accident arose from the work performance of plaintiff’s employer.  Where a plaintiff is injured in the course of his or her work, it is likely held the accident resulted from the employer’s work performance. The challenging part for the entity seeking indemnification from the plaintiff’s employer is to have the §200 claim dismissed. That must be established even where indemnification is based on the broad “performance of the work” standard.      

November 19. WHAT IS ANCILLARY WORK & ITS PROTECTION UNDER 240(1) & 241(6)

Filling in Holes Was “Ancillary Work” To Removal of Wooden Utility Posts. Such Work is Protected Under 241(6) and 240(1).

In Kalaf v. PSEG Long Is, LLC, 2024 NY Slip Op 05638, a First Dept. decision dated November 14, 2024, plaintiff worked for JNR in connection with a project involving replacing utility lines for defendant PSEGLI.  Plaintiff’s assignment was to fill holes created by removal of wooden utility posts, by using mulch, using a bark blower machine. The metal blades in the bark blower machine’s auger were frozen. Plaintiff was injured attempting to remove ice from the bark blower machine and his hand was caught in the blades of the auger. 

Defendants’ motion to dismiss the 241(6) action was denied as defendants failed to establish plaintiff’s work of filling holes following removal of the wooden utility posts was not a covered activity under 241(6). The Kalaf decision cited Mejia v. Unique Dev. Holding Corp., 188 AD3d 574 (1^st Dept. 2020), where plaintiff was struck when a load of lumber fell from a pallet being hoisted onto the roof of a newly constructed five-story apartment building. It was held in Mejia, “plaintiff’s job of receiving delivery of construction material at the time of the accident was a covered activity, as it was ancillary to the construction work.”

The Kalaf decision also cited Rutowski v. NY Convention Ctr. Dev. Corp., 146 A.D.3d 685 (1^st Dept. 2017), where the accident occurred as plaintiff was removing furniture from an exhibition booth at the conclusion of a trade show and was struck by a lighting bar that was also being removed from the top of the booth. It was held, “Since [plaintiff’s] specific task at the moment the accident occurred was ancillary to and part of the larger demolition job of dismantling the booths, in which he was to participate, plaintiff was engaged in an activity within the purview of 240(1) and 241(6).”

Where the work plaintiff is engaged in when an accident occurs may not be within the protection of 241(6) or 240(1), when that work is performed as part of a larger project, it may constitute ancillary work and covered under 240(1) and 241(6). The Kalaf decision appears to hold that filling the holes was part of the project of removing the wooden utility posts, rendering such work ancillary to the replacing of utility lines which was a covered activity under 241(6). Labor Law 241(6) is limited to construction, excavation and demolition work. When assessing 241(6) and 240(1), if it does not appear the work plaintiff was performing was construction, excavation or demolition, also look to the other work being performed at the project and whether it involved construction, excavation or demolition. Look beyond plaintiff’s work in determining the answer.

November 18. Pain and Suffering Awards For Lumbar & Cervical Surgeries Reduced in Post Trial Motion in Kings County.

An award of damages is properly set aside if it deviates from materially from what would be reasonable compensation. CPLR §5501. CPLR 4404(a) permits a court to set aside a jury verdict on the issue of damages and for a new trial or, in the alternative, to set aside as excessive the jury verdict on the issue of damages for past and future pain and suffering, past and future lost earnings, and future medical expenses.

In a November 8, 2024 post trial decision, Dojce v. 1302 Realty Co., LLC, 2024 NY Slip Op 34006(U), the Hon. Peter Sweeney of the Supreme Court, Kings County, reduced a jury award for past and future pain and suffering. Plaintiff was injured when an unguarded electric saw recoiled, propelling him against a desk and onto a floor. Plaintiff was installing a floor when the accident occurred. Plaintiff underwent a lumbar laminectomy, lumbar fusion and cervical fusion for multiple disc herniations.  Plaintiff underwent multiple epidural injections. Plaintiff did not return to work and remains under the care of a physician because of chronic pain.

The jury awarded plaintiff $5 million for past pain and suffering and $10 million for future pain and suffering for 32.5 years.  Judge Sweeney reduced the award for past pain and suffering to $3 million and the award for future pain and suffering to $2.5 million.

Judge Sweeney cited Masmalaj v. New York City Econ. Dev. Corp., 197 AD3d 1294 (2^nd Dept. 2021), where a Kings County jury verdict for past pain and suffering was reduced from $2 million to $1 million. In that case, plaintiff fell from a scaffold to the floor six feet below, resulting in cervical fusion surgery resulting in a non-union; left shoulder fracture requiring surgery and 5 epidural injections for lower back pain.

Judge Sweeney also cited Tarpley v. New York Tr. Auth., 177 AD3d 929 (2^nd Dept., 2019), in a verdict by a Queens County jury awarding $3 million for past pain and suffering and $7 million for future pain and suffering.  Accident arose from plaintiff’s stationary vehicle being struck by a bus. Plaintiff underwent an anterior cervical discectomy and fusion surgery.  There was a laminectomy for placement of a spinal cord stimulator to relieve lower back pain.  Appellate court reduced the award for past pain and suffering to $1 million and for future pain and suffering to $2 million.  Judge Sweeney cited Lopez v. New York City Dept. of Envtl. Protection, 123 AD3d 982 (2^nd Dept. 2014), where a Kings County jury awarded plaintiff $2 million for past pain and suffering and $3 million for future pain and suffering. While engaged in construction work, plaintiff fell backward and was impaled on an uncapped piece of a vertical rebar. Plaintiff sustained a herniated disc resulting in spinal fusion surgery. Appellate court affirmed the jury awards for past and future pain and suffering.

November 15. Integral to The Work Defense of 23-1.7(e)(2).  What Caused The Worker to Trip?

23-1.7(e)(2). Work Areas. The parts of floors, platforms and similar areas where persons work or pass shall be kept free from accumulations of dirt and debris and from scattered tools and materials and from sharp projections insofar and may be consistent with the work being performed.

The Second Dept. in Velasquez v. RS JZ Driggs, LLC, 2024 NY Slip Op 05574 decision, issued on November 13, addressed 23-1.7(e)(2) in the context of an “integral work” defense. Plaintiff was employed as an ironworker and was injured when a piece of temporary plywood flooring “kind of came up,” causing him to fall onto a vertical column of rebar. Although 23-1.7(e)(2) does not apply where a plaintiff trips over material integral to the work being performed, such exception did not apply here as plaintiff did not trip on the integral material rebar, but instead was injured from falling onto the rebar, which constitutes a “sharp projection” within the meaning of 23-1.7(e)(2).  

Where a worker trips on material integral to work being performed by the worker, it is a defense to 23-1.7(e)(2) as such material is required at the accident location for the work being performed. Velasquez decision held that while the rebar was an integral part of the work being performed by plaintiff when the accident occurred, such rebar did not cause plaintiff to trip. Rather, plaintiff was caused to trip by the condition of the temporary floor, resulting in the worker falling onto the rebar. As the rebar did not cause the worker to trip, the “integral to the work” defense was factually inapplicable. As such, defendant’s motion for summary judgment was denied.  The Velasquez decision distinguished between what material or object caused the fall and what material or object caused the injuries.

November 14. Breach of Contract Claim Against Subcontractor in Failing to Procure Additional Insured Coverage to a General Contractor is Dismissed Where Subcontractor’s Insurance Company Denied Coverage to The General Contractor Based Upon Policy Exclusion.

A general contractor’s agreement or contract with a subcontractor may obligate the subcontractor to not only indemnify the GC but also to name the GC as an additional insured on the liability policy obtained by the subcontractor for the project. Where the subcontractor fails to provide the GC with such additional insured coverage, the GC usually asserts a breach of contract claim against the subcontractor. 

What happens when the subcontractor procures a policy naming the GC as an additional insured, but the insurance company for the subcontractor denies coverage to the GC because of a policy exclusion?  In that situation, where the GC is denied coverage, did the subcontractor breach its contract with the GC?  No. The subcontractor did not breach its contract with the GC.   

Such issue was addressed by the Hon. Richard Latin of the Supreme Court, New York County, in a November 1, 2024 decision, Calix v. Union Theol. Seminary in the City of NY, 2024 NY Slip Op 33940(U). In that case, the subcontractor , Rosemount, who was plaintiff’s employer, demonstrated that it satisfied its contractual obligation by procuring an additional insured endorsement extending coverage to any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as a AI insured on your policy.  It was held that Rosemont’s insurer’s refusal to defend or indemnify Consigli is not a basis for a breach of contract claim. 

The Calix decision cited the 2004 First Dept. decision, Perez v. Morse Diesel Inter., Inc., 10 AD3d 497, where Morse Diesel alleged Property Resources breached its obligation to procure insurance for Morse Diesel.  However, Property Resources purchased a liability policy from CGU/American Employers Insurance Company, having a blanket endorsement for contractually designated additional insureds.  In holding Property Resources did not breach the contract by failing to procure insurance for Morse Diesel, the Perez decision held. “The insurer’s refusal to indemnify Morse Diesel under the coverage purchased by Property Resources does not alter this conclusion.”    A breach of contract claim against a subcontractor for failing to procure additional insured coverage for a GC is dismissed where an additional insured was denied coverage by the subcontractor’s insurer because of a policy exclusion.

November 13. Indemnification Obligation Stemming From Respondent Superior Rule

Calix v. Union Theol. Seminary in the City of NY, 2024 NY Slip Op 33940(U), issued by the Hon. Richard Latin, Supreme Court, NY County, addressed in part, a worker’s negligence in assessing the indemnification obligation of the worker’s employer, Rosemont. The indemnification obligation did not use the term negligence.  However, negligence was implied from the indemnity language.

“for all claims arising out of the Subcontractor’s performance of its Work under this Subcontract caused, in whole or in part, by the acts or omissions of Subcontractor.”

While the indemnification language states the “performance of the work,” the accident must have been the result of the acts or omissions of the subcontractor, Rosemont, plaintiff’s employer. While the indemnification clause does not use the term “negligence,” the accident must have been caused by Rosemont’s “acts or omissions.”

Here, an entry in a work log stated plaintiff, because he was running down the stairs, slipped and fell.  Rosemont argued the accident was the result of plaintiff’s act of running down the stairs and not from any act or omission of Rosemont.  As such, Rosemont argued it was not obligated to indemnify the third party plaintiffs.

Judge Latin disagreed with Rosemont’s assessment, citing the doctrine of respondent superior, which provides an employer can be held vicariously liable for an unlawful or unjust act of an employee. 

The decision held, “Plaintiff’s negligence may be imputed to Rosemount (plaintiff’s employer) under the doctrine of respondent superior for purposes of determining liability for contractual indemnification.” The decision cited Wittenberg v. Long Is, Power Auth., 225 AD3d 730 (2^nd Dept. 2024), holding plaintiff’s negligence while working on electrical lines may be imputed to his employer for purposes of determining liability for contractual indemnification.  Also cited was Mercado v. Caithness Long Is. LLC, 104 AD3d 576 (1^st Dept. 2013), holding plaintiff’s failure to wear a hard hat could be imputed to his employer for purposes of contractual indemnity.

Where contractual indemnification requires a showing the subcontractor’s acts or omissions resulted in the accident, the subcontractor cannot separate plaintiff’s actions from the subcontractor’s performance of the work.  Even where plaintiff’s actions, such as running down stairs caused the accident, such accident was derived from the acts or omissions of plaintiff’s employer, requiring such employer to indemnify a general contractor. While a subcontractor has a defense to indemnification where the worker was injured for engaging in work beyond the scope of the contracted work, that was not the situation here.   

November 12. Accident Not Result of Significant Elevation Hazard. 240(1) Dismissed.

Comment. Amount of a gap causing a fall or the distance a worker fell was deemed in below cases not to be a condition requiring any of the safety devices of 240(1). As such, 240(1) action dismissed. Talking about falls of a several inches or a few feet from ramps or holes. Such minute distances are held to be usual & ordinary conditions of a work site.        

240(1) Dismissed.

Gap between insulation boards.

Fall into trough.

Falls from ramps.

Gap between flatbed truck & loading dock.

Tilt of truck.

Fall off pallet.

Hole in flatbed truck.

Fall through rebar.

Fall off a stage.

Court of Appeals

5-6 Inch Gap Between Insulation Boards

Court of Appeals. 2006. 240(1) Dismissed. Falling into 5-6 inch gap between insulation boards, which were stacked 8-feet tall, not gravity-related accident. Keavey v. New York State Dormitory Auth., 6 NY3d 859;

Fall Into 12 Inch Trough

Court of Appeals. 1991. 240(1) Dismissed. 12 Inch Trough Not Elevation Risk. Plaintiff’s employer contracted to remove & repair insulation covering pipes on roof of defendant’s power plant. Such pipes were in recessed area running entire length of roof. In center of recessed area was trough, 18-36 inches wide, 12 inches deep, carrying stream of hot oil. As plaintiff about to step across trough, he slipped, causing his foot to be immersed in hot oil. Held that while extent of elevation not necessarily determine existence of elevation related risk, plaintiff’s proximity to 12 inch trough not elevation related risk requiring any of protective devices of types listed in 240(1). Rocovich v. Consolidated Edison Co., 78 NY2d 509;

First Dept.

Plaintiff Struck by Excavator

First Dept. 2022. 240(1) Dismissed. Accident not result of direct consequence of failure to provide adequate protection against a risk arising from physically significant elevation differential. While plaintiff struck by excavator, fact that at the time he was bringing debris up earthen ramp or that he rolled down the ramp after being struck, not give rise to 240(1) action. Herrera v. Kent Ave, Prop. III LLC, 203 AD3d 512;

Ramps

First Dept. 2022. 240(1) Dismissed. 12-18 Inch Ramp From Ground to Sidewalk Not Elevation Related Hazard.  While wheeling hand truck carrying work material along plywood ramp, one of pieces of plywood shifted under him, causing him to fall onto steel piping & concrete floor 12-18 inches below. Although no bright line minimum height differential determining whether elevation hazard exists, for purposes of 240(1), accident not the result of elevation related risk. D’Ambruso v. Port. Auth. of NY & NJ, 211 AD3d 573;

First Dept. 2018. 240(1) Dismissed. 6-10 Inch Makeshift Ramp Not Significant Elevation Differential. While plaintiff carrying water main pipe he lost his balance upon stepping on makeshift ramp that “bowed,” causing pipe to fall & plaintiff injured. Height differential of 6-10 inches of ramp not physically significant elevation differential under 240(1). Also, impetus for pipe’s descent was plaintiff’s loss of balance, rather than direct consequence of force of gravity. Jackson v. Hunter Roberts Constr. Group, LLC, 161 AD3d 666;

First Dept. 2018. 240(1) Dismissed. Ramp 8-12 Inches From Bed of Truck to Loading Dock. Plaintiff rolling 4 wheeled cart filled with 200 pounds of materials over unsecured, makeshift plywood ramp which bridged 6-inch gap between truck bed to loading dock. Ramp slipped out of place & cart fell, causing injury to plaintiff. Vertical distance from truck bed to loading dock 8-12 inches. Accident not caused by failure to protect him from elevation risk posed by distance of almost 4 feet from floor to surface of loading dock, as plaintiff remained on loading dock while cart became wedged in gap between truck bed & loading dock & no evidence such gap large enough to pose significant risk of a fall to floor. Sawczyszyn v. NYU, 158 AD3d 510;

First Dept. 2009. 240(1) Dismissed. 12-18 Inch Not Height Differential. Makeshift Ramp. Construction debris from the project was removed from the site & taken to the street in Rite-Way’s wheeled containers, which typically held 250 pounds of material. Plaintiff injured while rolling a filled container from work site to his truck parked on street. ¾ inch thick sheet of plywood laid down as makeshift ramp to bridge the gap in height between edge of work site, at curb level & street, which was lower than usual as surface layer of asphalt removed during ongoing repaving. Plywood not braced or supported from beneath. Height differential between bridged levels 12-18 inches. As plaintiff pushed container down ramp, ramp collapsed, causing concrete debris to strike plaintiff’s leg. As height differential from bottom to the top between street & curb was at most 12 to 18 inches, plaintiff not exposed to elevation differential hazard under 240(1). Torkel v. NYU Hosp. Ctr., 63 AD3d 587;

Ladder

First Dept. 2024. 240(1) Dismissed. Plaintiff injured while standing on ladder using a grinder to cut a metal plate at chest height. As plaintiff worked, grinder began shaking & kicked back, striking his face. Although ladder moved after the grinder malfunctioned, ladder not fall or collapse, nor did plaintiff fall from the ladder because he held onto a wooden beam & coworkers then held the ladder, helping him down. 240(1) dismissed as accident stemmed from grinder & that not fall from ladder. Accident not arise from elevation-related risk. Desprez v. United Prime Broadway, LLC, 225 AD3d 518; 

Fall From Pallet

First Dept. 2012. 240(1) Dismissed. Fall From Unsecured Pallet & Water Accumulation. Plaintiff’s work consisted of cutting bricks with employer’s stationary wet saw. While in use, a wet saw sprays water on bricks being cut to cool & lubricate the bricks & cutting blade & reduce dust & flying particles. Plaintiff claimed wet saw malfunctioned & sprayed water all over, including floor. Water accumulated underneath pallet plaintiff standing on, causing pallet to shift when plaintiff picked up bricks or put them down. The saw was only source of the water. When pallet shifted, left foot became caught between pallet slats & fell to floor. Plaintiff was at most 12 inches above the floor standing on pallet & as such, not exposed to elevation related risk requiring protective equipment. Cappabianca v. Skanska USA Bldg. Inc., 99 AD3d 139;

Transformer Falling Off Wall Fell 2 Feet Before Striking Worker

First Dept. 2010. 240(1) Dismissed. No Appreciable Height Distance. Transformer fell less than 2 feet. As plaintiff attempted to repair a pipe, transformer affixed to a wall at height of 6-7 feet, fell, striking plaintiff in the head. As plaintiff was 5 feet, 8 inches tall, transformer fell less than 2 feet. Plaintiff standing on ground when struck by transformer. As plaintiff not working at elevation & no appreciable height differential between plaintiff’s head & falling transformer, 240(1) dismissed. Makarius v. Port Auth. of NY & NJ, 76 AD3d 805;  

12 Inches. 240(1) Dismissed.

First Dept. 2012. 240(1) Dismissed. Fall From Unsecured Pallet & Water Accumulation. Plaintiff’s work consisted of cutting bricks with his employer’s stationary wet saw. While in use, a wet saw sprays water on bricks being cut to cool & lubricate bricks & cutting blade & reduce dust & flying particles. Plaintiff claimed wet saw malfunctioned & that it sprayed water all over, including floor. Water accumulated underneath pallet plaintiff was standing on, causing pallet to shift when plaintiff picked up bricks or put them down. The saw was the only source of the water. When pallet shifted, left foot became caught between pallet slats & he fell to floor. Plaintiff was at most 12 inches above the floor standing on pallet & as such, not exposed to elevation related risk requiring protective equipment. Cappabianca v. Skanska USA Bldg. Inc., 99 AD3d 139;

Truck Having Slight “Tilt.”

First Dept. 2016. 240(1) Dismissed as Plaintiff Loading Ladders on Truck Having Slight “Tilt.” Work plaintiff engaged in, i.e., retrieving ladders his employers used at work site, construction-related activity covered by 240(1) & 241(6). However, as no elevation risk, 240(1) dismissed. As plaintiff testified not notice tilt of truck onto which he was loading ladders, any elevation differential resulting from tilt was de minimis. Guido v. Dormitory Auth. of the State of NY, 145 AD3d 591;

Stepping Into Hole on Flatbed Trailer

First Dept. 2015. 240(1) Dismissed. While working on flatbed trailer, plaintiff stepped into hole on flatbed trailer, sinking his leg into the hole up to the hip. Plaintiff not exposed to any gravity related risk from his work. Brown v. NY-Presbyterian HealthCare Sys., 123 AD3d 612;

Hole in Floor of Trailer

First Dept. 2006. 240(1) Dismissed. Plaintiff’s legs fell through the floor of trailer up his knee. It was not elevation related risk. Kulovany v. Cerco Prods., Inc., 26 AD3d 224;

Second Dept.

Fell While Working In Trench

Second Dept. 2010. 240(1) Dismissed. Plaintiff, plumber’s helper, suffered accident while working on construction of residential development owned by defendant. Plaintiff shoveling fill to cover pipes running through an 18-24 inch deep trench when ground beneath him collapsed. As he fell, he struck his head on uncapped rebar protruding from foundation next to which trench ran. Not gravity related fall. Barillaro v. Beechwood RB Shorehaven, LLC, 69 AD3d 543;

2 Foot Height to Operate Drill Rig

Second Dept. 2007. 240(1) Dismissed. Defendant awarded summary judgment where 2-foot height from which plaintiff had to operate a drill rig not pose type of significant risk of 240(1). Bray v. State of NY, 38 AD3d 583;

3 Foot Difference on Section of Roof From Rest of Roof Where Accident Occurred

Second Dept. 2017. 240(1) Dismissed. Plaintiff used extension ladder to gain access to roof of building to perform work in mechanical room. However, once inside mechanical room, plaintiff needed a ladder & he went to area of roof 3 feet higher than rest of the roof. When descending from this section of the roof, he fell. Held that 3 foot differential not present sort of elevation differential protected by 240(1). Pita v. Roosevelt Union Free Sch. Dist., 156 AD3d 833;

Roofer Fell Through Doorway Several Feet Above Roof. Type of Injury Sustained.

Second Dept. 2012. Section 240(1) Dismissed. Plaintiff, a roofer, fell after stepping through doorway several feet above level of lower roof of building. Metal grate usually placed on other side of doorway had been removed at time of accident. Evidence showed plaintiff’s injuries not result from type of elevation related hazard to which 240(1) applies. Parker v. 205-209 E. 57^th St. Assoc., LLC, 100 AD3d 607; 

Fourth Dept.

4-Foot Fall Off a Stage Fourth Dept. 2011. Plaintiff, an ironworker, was part of crew that demolishing a structural steel canopy in a step by step process. During demolition, canopy began to collapse, causing plaintiff to run to end of a stage where he jumped into pile of debris. Stage was 4 feet above ground. Court held a fall from 4 feet from the stage not a situation calling for use of safety device as those listed in 240(1) to prevent a worker from falling. Charney v. LeChase Constr., 90 AD3d 1477;

November 11. 240(1) Falling Object Cases. The Weight of The Falling Object Determines Whether It Was a De Minimis Fall.

In a Second Dept. 2024 decision, Davila v. City of NY, 2024 NY Slip Op 05433, 240(1) liability was imposed based upon the amount of force generated by the falling object. While working at a construction site, a 400 pound duct lift toppled off an unsteady ramp, striking plaintiff.  In addressing falling object cases, relevant inquiry is whether the harm flows directly from the application of the force of gravity to the object. Plaintiff must show the object fell because of absence or inadequacy of a safety device of the kind enumerated in 240(1). Although defendants submitted evidence establishing the elevation differential was only 10 to 12 inches, given the 400 pound weight of the duct lift & amount of force it was capable of generating, the elevation differential was not de minimis. Plaintiff submitted evidence to show that he suffered harm flowing directly from the application of the force of gravity to the duct lift. Defendant failed to provide a secure ramp. 

In assessing whether there is liability in a falling object accident, the Court of Appeals in the 2009 Runner v. NY Stock Exchange, 13 NY3d 599, looked to the weight of the falling object and the amount of force the object generated when striking the worker. In Davila v. City of NY, the duct lift only fell 10-12 inches before striking plaintiff. Such a distance is not a de minimis elevation differential because the falling object, the duct lift, weighed 400 pounds. Such an object, while only falling 10-12 inches, can inflict serious injury. While elevation differential is a factor in falling object 240(1) cases, the heavier the falling object the less distance it needs to fall for there to be 240(1) liability. At the deposition, obtain the approximate distance the object fell as well as the falling object’s weight.  

November 8. Subcontractor Excavator’s Defense to “Performance of The Work” Indemnification Obligation

In the context of contractual indemnification, such indemnification obligation is based upon either the subcontractor’s negligence or the broader obligation of merely arising from the subcontractor’s work.  The latter obligation does not require a general contractor, seeking indemnification, to establish the subcontractor acted negligently. Where a subcontractor’s employee is injured in the course of his work, such injury triggers a subcontractor’s contractual obligation to indemnify a general contractor. 

Where a pedestrian is injured from a dangerous condition in an area where a subcontractor previously performed excavation work, did the accident arise from the subcontractor’s work or, from wear and tear to the area subsequent to a subcontractor completing its work?  Is such subsequent wear and tear a defense to a subcontractor’s indemnity obligation to the “performance of the work” contractual language?

Second Dept. decision, Harrison v. Consolidated Edison Co. of NY, Inc., 2024 NY Slip Op 05436, issued November 6, 2024, addressed indemnification language, “performance of the work,” where a subcontractor performed excavation and renovation of a roadway and a pedestrian tripped and fell in the area of the work. 

The contract at issue contained an indemnification provision obligating Step Mar to indemnify Con Ed “to the fullest extent allowed by law … from all claims … for injury to …  persons … resulting in whole or in part from, or connected with, the performance of the work.” As such indemnification obligation was triggered by Step Mar’s “performance of the work,” Con Ed was not required to show Step Mar was negligent in its performance of its work, in order to be indemnified by Step Mar.  Rather, Con Ed had to establish the accident resulted from Step Mar’s work to the roadway.

While Step Mar conceded it performed work in the accident area, Step Mar asserted the dangerous condition did not result from its performance of the work, but rather, was from subsequent “wear and tear” to the area. Denying Step Mar’s summary judgment motion, the court held Step Mar offered no expert witness evidence or other evidence in support of its assertion of the roadway condition resulting from subsequent wear and tear. The decision provides an excavation subcontractor may have no obligation to indemnify a general contractor for accidents arising from the broad “performance of the work” obligation where evidence is offered of a dangerous condition resulting from “wear and tear” of an area subsequent to a subcontractor completing excavation work. 

November 7. Lessee of Premises Not Liable Under Labor Law 240(1)

Lessee/tenant not liable under Labor Law 240(1) because it is not the property owner and it did not contract for the injury producing work. If the lessee contracted for the injury producing work, it is likely liable under 240(1).

Court of Appeals

Lessee Not Liable Under 240(1). Lessee Not Contract For Injury Producing Work.

Court of Appeals. 2009. 240(1) Dismissed. Lessee Not Liable Under 240(1). Lessee Not Contract For Injury Producing Work. Plaintiff, ABM employee, fell while cleaning a window on a floor that Goldman had not yet occupied. Goldman began moving in the day after the accident. ABM hired by building owner, Paramount Group. Plaintiff claimed such cleaning was not a regular quarterly cleaning but a special preoccupancy cleaning in preparation for Goldman’s use. Such cleanings were provided for in the Paramount-ABM contract. No evidence tenant Goldman hired ABM to perform any cleaning. Contractor that Goldman used to perform renovation work in the leased spaced, subcontracted no work to ABM. As such, Goldman had no liability under 240(1). Ferluckaj v. Goldman Sachs & Co., 12 NY3d 316; 

First Dept.

First Dept. 2014. 240(1) Dismissed. Lessee Not Contract For The Work. Plaintiff fell off a ladder whilefeeding a portable AC exhaust tube into pre-existing duct hole. Such work not constitute “alteration” within 240(1). Also, no liability against defendant Sprint, a lessee of the building where plaintiff was employed, as it did not contract for the work or have any right to control the work. Pantovic v. YL Realty, Inc., 117 AD3d 538; 

Second Dept.

240(1) Dismissed. Lessee Not Contract For or Supervise The Work.

Second Dept. 2014. Lessee Not Owner or Agent. Lowe’s a lessee, neither contracted for nor supervised demolition work on the premises. As such, Lowe’s not an owner or agent under 240(1). Garcia v. Market Assoc., 123 AD3d 661;   

Second Dept. 2012. 240(1) Dismissed. As to 240(1) and 241(6), the term “owner” encompasses a person who has an interest in the property & who fulfilled role of owner by contracting to have work performed. Owner includes a lessee who has the right or authority to control work site, even if lessee did not hire the GC. Plaintiff performing work in building owned by 500 Lincoln & leased to DHL. 500 Lincoln hired plaintiff’s employer, SPS, DHL submitted the contract between 500 Lincoln & SPS, & deposition testimony demonstrating that neither DHL, nor engineering company, Paragon, which DHL hired to observe & monitor work performed by SPS, directed, controlled or supervised SPS’s work or had the right or authority to do so. As such, DHL not an owner within 240(1). Allan v. DHL Express (USA), Inc., 99 AD3d 828;

November 6. Appellate Courts & Trial Judges Address Past & Future Pain & Suffering Awards of Tibia; Femur & Fibula Fractures

Comment. The femur is only bone in the thigh. It is the strongest & longest bone in the body. It occupies the space between the hip & knee joints.

First Dept. 2015. Coleman v. NYCTA, 134 AD3d 427;

Trial Court. Supreme Court, Bronx County.

MV Accident.

Permanent injury to right leg; fractured right femur requiring surgery; meniscus tear requiring surgery; lower back injury including a bulging disc.

Jury Award. $1.5 million for past pain & suffering. $2 million for future pain & suffering over a period of 10 years. 

Appellate Court affirmed jury award.

First Dept. 2005. Singh v. Catamount Dev. Corp., 21 AD3d 824;

Trial Court. Supreme Court, NY County.

Skiing accident. 14 year old.

Fracture dislocation of left shoulder & open compound fracture of left femur.

Jury Award. $18,000 for past pain & suffering. $0 for future pain & suffering.

Appellate Court increased award of past pain & suffering to $200,000. Increased award for future pain & suffering to $100,00.

First Dept. Trial Court. NY County. 2010. Cohen v. MTA, 2010 NY Slip Op 32192(U);

Stepped into gap between train & train platform.

Comminuted fracture of left femur, requiring surgery & fractured right shoulder.  

Jury Award. $200,000 for past pain & suffering. $100,000 for future pain & suffering.

Trial Court. Affirmed trial court award.

Third Dept.

Third Dept. 2010. Chase v. OHM, LLC, 75 AD3d 103;

Trial Court. Supreme Court, Sullivan County.

80 year old slipped on ice in parking lot.

Fracture of right distal femur requiring open reduction & internal fixation using supracondylar femoral plate. One month later, while attempting to transfer from her wheelchair to walker, plaintiff fell & suffered right distal radius fracture of her wrist, that was treated with closed reduction. Two and half years post accident, femoral plate in plaintiff’s leg failed & it was discovered plaintiff had a nonunion of the bone, requiring a second operation to remove broken plate & replace it with a metal rod.

Jury Award. $400,000 for past pain & suffering. $442,000 for future pain & suffering.

Appellate Court affirmed jury award.

Tibia Fracture

Comment. Tibia, also known as shinbone is the larger & stronger of the 2 bones below the knee & it connects the knee with ankle bones.

First Dept. 2015. Roy L.N., Jr/ v. NYCHA, 125 AD3d 471;

Trial Court. Supreme Court, Bronx County.

Infant plaintiff.

Spiral fracture of left tibia and damages to tendons, ligaments and nerves. Hospitalized for 3 days, wore a cast for 6 ½ weeks.

Jury award for past pain & suffering $250,000.

Appellate Court affirmed jury award.

First Dept. 2013. Grinberg v. C&L Contr. Corp., 107 AD3d 491;

Trial Court. Supreme Court, NY County.

Pilon fracture; comminuted tibia fracture; spiral fracture to fibula, near the knee. Surgery involving open reduction & internal fixation & second surgery to remove hardware.

Jury Award. $75,000 for past pain & suffering. $35,000 for future pain & suffering.

Appellate Court increased award for past pain & suffering to $500,000. Increased award for future pain & suffering to $450,000.   

First Dept. 2010. Jones v. NYC Tr. Auth., 66 AD3d 532;

Trial Court. Supreme Court, Bronx County.

10 year old plaintiff had train door close on her foot resulting in being dragged the length of the platform as the train departed the station.

Distal tibia fracture resulting in one leg being 20 millimeters shorter than the other; knee dislocation; second degree burns on 10% of her body from scraping on cement platform.

Jury Award. $1.5 million for past pain & suffering. $1.5 million for future pain & suffering.

Appellate Court affirmed jury award.

First Dept. 2008. Ferrer v. City of NY, 49 AD3d 396;

Trial Court. Supreme Court, Bronx County.

Slip and fall on sidewalk from ice.

25 year old. Fractured right tibia requiring 2 surgeries. Injury caused complications to left knee requiring surgery. Required to use leg brace 6 years after accident.

Jury Award. $1,011,240 for past pain & suffering.

Appellate Court reduced award for past pain & suffering to $600,000.

First Dept. 2007. Watanabe v. Sherpa, 44 AD3d 519;

Trial Court. Supreme Court, NY County.

Struck by taxi.

Fractured tibia. Surgery. Open reduction & internal fixation.

Jury Award. $150,000 for past pain & suffering.

Appellate Court awarded $300,000 for future pain & suffering.

First Dept. 2004. Rosario v. Carassone, 5 AD3d 295;

Trial Court. Supreme Court, Bronx County.

11 year old. Fall at school.

Fracture of left distal tibia & avulsion fracture of the left 5^th metatarsal.

Jury Award. $200,000 for past pain & suffering. $300,000 for future pain & suffering.

Appellate Court affirmed jury award.

Second Dept.

Second Dept. 2006. Nassour v. City of NY, 35 AD3d 556;

Trial Court. Supreme Court, Kings County.

Fall into pothole in parking lot.

Tear of medical meniscus cartilage of knee, with arthroscopic surgery; high tibial ostemotomy; diagnosed with RSD.

Jury Award. $800,000 for past pain & suffering. $1,712,50 for future pain & suffering.

Appellate Court reduced award for past pain & suffering to $500,000. Reduced future pain & suffering to $1 million.

Fibula Fracture

Comment. Fibula or calf bone is a leg bone located on lateral side of the tibia. Fibula is the most slender of all the long bones. 

First Dept.

First Dept. 2012. Lewis v. NYC Tr. Auth., 100 AD3d 554;

Trial Court. Supreme Court, NY County.

Fractured fibula requiring open reduction & internal fixation & degloving injury, requiring skin & muscle grafting and several debridements.

Defendants offered no expert testimony as to damages.

Jury Award. $2.5 million for past pain & suffering, $4 million for future pain & suffering over 10 years.

Appellate Court affirmed jury award.

Second Dept.

Second Dept. 2018. Robinson v. Brooklyn Union Gas Co., 160 AD3d 999;

Trial Court. Supreme Court, Kings County.

Stepped into pothole.

Fibula fractured in 2 places & tibia fracture. Open reduction & internal fixation where a rod & screw permanently installed.

Jury Award. $150,000 for past pain & suffering. No award for future pain & suffering.

Appellate Court affirmed jury award including $0 for future pain & suffering.

Second Dept. Trial Court. Supreme Court, Queens County. 2013. Figueroa v. HLM Elec., Ltd., 38 Misc 3d 1230(A).

Stone wall next to trench collapsed, striking plaintiff.

Fractured fibula & crush injuries to his foot, 3 surgeries. 2 future surgeries planned.

Jury Award. $1 million for past pain & suffering. $1,280,000 for future pain & suffering. 40 years.

Trial Court. Affirmed jury award.

Third Dept.

Third Dept. 2014. Vincent v. Landi, 123 AD3d 1183;

Supreme Court, Franklin County.

Slip & fall on black ice on driveway.

Spiral fracture of left distal fibula with joint incongruency. Open reduction surgery with internal fixation of a plate & 7 screws.

Jury Award. $15,000 for past pain & suffering. No award for future pain & suffering.

Appellate Court. Increased award for past pain & suffering to $75,000. Awarded $100,000 for future pain & suffering over 28 years.  

Fractures of Both Tibia & Fibula

First Dept. 2017. Matter of Steam Pipe Explosion at 41^st St. & Lexington Ave., 147 AD3d 421;

Trial Court. Supreme Court, NY County.

Plaintiff 70 years old. Buried in rubble after steam pipe explosion. Degloving injury; comminuted fractures of tibia & fibula; open calcaneus fracture.  

Jury Award. $4,380,000 for past pain & suffering. $7,442,000 for future pain & suffering.

Appellate Court reduced award for past pain & suffering to $3,250,000. Reduced award for future pain & suffering to $1.5 million.

First Dept. 2015. Bonano v. City of NY, 125 AD3d 502;

Trial Court. Supreme Court, Bronx County.

Police Officer opened door of unmarked police vehicle, causing passing plaintiff to lose control of his bike & crash into parked car.

19 year old. 3 surgeries to right ankle. Open comminuted fractures of fibula, tibia & talus. Fourth surgery is likely to fuse ankle bones.

Jury Award. $500,000 for past pain & suffering. $1,140,000 for future pain & suffering

Appellate Court affirmed jury award.

First Dept. 2013. Grinberg v. C&L Contr. Corp., 107 AD3d 491;

Trial Court. Supreme Court, NY County.

Pilon fracture; comminuted fracture to tibia; spiral fracture to fibula. Surgery for open reduction & internal fixation & second surgery to remove hardware.

Jury Award. $75,000 for past pain & suffering. $35,000 for future pain & suffering.

Appellate Court increased past pain & suffering award to $500,000. Increased future pain & suffering to $450,000.   

First Dept. 2013. Hernandez v. Ten Ten Co., 102 AD3d 431;

Trial Court. Supreme Court, NY County.

Fractures to tibia & fibula with leg surgery having installation of metal rod & screws in his leg, sustained back injuries & reflex sympathetic dystrophy.

Jury Award. $1 million for past pain & suffering. $2,166,667 for future pain & suffering over 25.8 years.

Appellate Court affirmed jury award.

First Dept. 2008. Bello v. NYC Tr. Auth., 50 AD3d 511;

Trial Court. Supreme Court, Bronx County.

7-year old plaintiff suffered injury on bus.

Open fracture of right tibia & fibula, degloving injury to right leg. Tibia sustained a spiral fracture. Open reduction & internal fixation & 7 additional procedures, including grafting to cover exposed tissue. Leg had significant scarring & required a graft. Plaintiff walks with a limp that is not going away.

Jury Award. $750,000 for past pain & suffering. $750,000 for future pain & suffering.

Appellate Court affirmed jury award.

First Dept. 2007. Singh v. Gladys Towncars Inc., 42 AD3d 313;

Trial Court. Supreme Court, Bronx County.

Fractures of tibia & fibula. Open reduction & internal fixation surgery.

Jury Award. $2 million for past pain & suffering. $2 million award for future pain & surgery.

Appellate Court reduced awards for both damages to $1 million.  

First Dept. Trial Court. Supreme Court, Bronx County. 2004.

Orellano v. 29 E. 37^th St. Realty Corp., 2004 NY Slip Op. 01216;

47 year old. Comminuted fracture tibia & fibula requiring several surgical procedures during 2 month hospital stay.

Jury Award. $2.5 million for past pain & suffering. &3 million for future pain & suffering.

Appellate Court reduced pain & suffering award to $375,000 each.  

First Dept. 2009. Trial Court. Supreme Court, NY County. Keating v. SS&R Mgt. Co., 59 AD3d 176;

MV accident.

45 year old plaintiff suffered open fracture of tibia & fracture of fibula requiring 6 surgical procedures performed over course of 3 years, including external & internal fixation, skin, muscle & nerve grafts. Fracture not achieve union, likely require further surgeries.

Jury Award. $5 million for past pain & suffering. $7 million for future pain & suffering.

Appellate Court reduced past pain & suffering to $500,000. Reduced future pain & suffering to $600,000 over 31 years.

First Dept. Trial Court, NY County. 2009. Hernandez v. Ten Ten Co., 26 Misc 3d 1201(A);

Fall from ladder at work.

Fibula & tibia fractures, requiring open reduction & internal fixation.

Jury Awards. $1 million for past pain & suffering for the 8 years before the verdict. $2,166,666 for pain & suffering over 26 years.

Trial Court affirmed jury award.

First Dept. Trial Court. Bronx County. 2005. Singh v. Gladys Towncars Inc., 42 AD3d 313;

Tibia & fibula fractures with nerve damage, requiring 5-week hospital stay & internal fixation open reduction with surgical hardware remaining in the leg. Also, several fractures of facial bones.

Jury awarded $2 million for past pain & suffering. $2 million for future pain & suffering.

Trial Court reduced jury award to $1 million for past .    

Second Dept.

Second Dept. 2007. Brown v. Elliston, 42 AD3d 417;

Trial Court. Supreme Court, Suffolk County.

Pedestrian struck by vehicle.

Comminuted fractures to shaft of tibia & fibula.

Jury Award. $300,000 for past pain & suffering. $500,000 for future pain & suffering.

Appellate Court. Reduced award for future pain & suffering to $400,000.

Second Dept. 1997. Zavurov v. City of NY, 241 AD2d 491;

Trial Court. Supreme Court, Queens County.

35 year old stepped into pothole at crosswalk.

Comminuted fracture of distal right tibia & fibula, requiring open reduction & internal fixation.

Jury Award. $400,000 for past pain & suffering. $100,000 for future pain & suffering.

Appellate Court. Reduced award for past pain & suffering to $250,000. Reduced future pain & suffering to $75,000.

Fourth Dept.

Fourth Dept. 2003. Patterson v. Kummer Dev. Corp., 302 AD2d 873;

Trial Court. Supreme Court. Niagara County.

Fall of 10 feet of a ladder.

Fracture dislocation of left ankle, including distal tibia & fibula, requiring 2 surgeries & insertion of plate & screws.

Jury Award. $750,000 for past pain & suffering. Appellate Court reduced award to $500,000.

November 5. Accident Caused by Same Condition Plaintiff Undertaken to Remedy. Labor Law §200 Dismissed.

Comment. Common law duty to provide employees with safe place to work does not extend to hazards that are part of or inherent in same work employee is hired to perform.

Examples. If a worker is tasked with removing snow from area of construction site & worker slips in the course of such work, Section 200 is dismissed. Where worker suffers injury from slipping from water on the floor stemming from repairing a boiler, worker cannot recover under Section 200.

LABOR LAW §200 STATUTORY LANGUAGE All places to which this chapter applies shall be so constructed, equipped, arranged, operated and conducted as to provide reasonable and adequate protection to the lives, health and safety of all persons employed therein or lawfully frequenting such places. All machinery, equipment, and devices in such places shall be so placed, operated, guarded, and lighted as to provide reasonable and adequate protection to all such persons. The board may make rules to carry into effect the provisions of this section.

§200 Dismissed From Worker Accidents.

Removing snow & ice.

Slipping on water that resulted from boiler repair.

Injured fixing elevator.

Fall out a window while making repairs to window.

Court of Appeals.

Court of Appeals. 1934. The law that an owner must keep the place reasonably safe for a contractor & his subcontractors does not apply where the work itself is of an unsafe nature or the defects are due to the imperfect & negligent work of the contractor himself.  An employee cannot recover for injuries received while doing an act to eliminate the cause of the injury. The reason for this exception to the general rule is that it would be manifestly absurd to hold owners to the duty of providing a safe place where the very work in which employee is engaged makes it unsafe. As such, If John or his employee had fallen out the window because of a defective shutter bar, no recovery could have been had against the owner. Such defect was the defect John was hired to remove. Kowalsky v. Conreco Company, 264 NY 125;

First Dept.

Snow & Ice

First Dept. 2014. §200 Dismissed. Ice. Plaintiff slipped & fell on ice he was removing from top floor of hotel under construction. Plaintiff slipped on ice his supervisor had instructed him to remove.  As such, the ice was a dangerous condition plaintiff was directed to remedy. Plaintiff cannot recover under Section 200 since the condition for which he would hold defendants accountable was exact condition he had undertaken to remedy. Griffiths v. FC-Canal, LLC, 120 AD3d 1100:

First Dept. 2004. §200 Dismissed. Snow. Snow on which plaintiff slipped was very condition plaintiff charged with removing. It did not avail plaintiff that he was an ironworker employed to perform steel work at the project where his employer’s subcontract with Turner required the former to remove snow & ice from areas where its employees were working. Gaisor v. Gregory Madison Avenue, LLC.,13 AD3d 58; 

Debris

First Dept. 2004. §200 Dismissed. The debris causing plaintiff’s fall was the same hazard plaintiff had undertaken to remedy. Appelbaum v. 100 Church LLC, 6 AD3d 310;

Second Dept.

Elevators

Second Dept. 2022.§200 Claim Dismissed as Plaintiff Injured by Condition Plaintiff Was Hired to Repair. Plaintiff injured when elevator he was attempting to repair rapidly & unexpectedly descended to ground floor. Plaintiff cannot recover on his Section 200 cause of action & common-law negligence, because of a dangerous condition which he or she has undertaken to repair. Injury-producing accident was caused by unidentified defect in very elevator that injured plaintiff’s employer hired to repair. Section 200 & common-law negligence claims dismissed. Soto v. Justin Hochberg 2014 Irrevocable Trust, 202 AD3d 1122;

Second Dept. 1997. §200 Dismissed. Elevator. Plaintiff injured while operating an elevator plaintiff was directed to repair. Elevator failed to stop at designated floor & descended 10 floors where it was stopped by buffer springs at the bottom of the elevator shaft. Section 200 dismissed as plaintiff injured by same dangerous condition he was tasked with fixing. Linstedt v. 813 Associates, 238 AD3d 386; 

Debris Removal

Second Dept. 2020.  Duty to provide workers with safe work place not extend to hazards inherent in the work. Excavating laborer performing demolition inside a subway tunnel. Specific task was to shovel concrete debris, which was chipped away from walls of subway tunnel into bags.  During such work, plywood was placed atop subway tracks covering its rails. Plaintiff injured when his shovel struck a railway track. As plaintiff’s job duties required him to remove debris from subway tracks, & alleged injuries were caused in normal course of his removal of the debris in such area, Section 200 cause of action dismissed. Pacheco v. Judlau Contr. Inc., 186 AD3d 1700;

Second Dept. 2012. §200 Dismissed. Plaintiff’s job was to clean up debris at construction site. Plaintiff used a broom to clean interior staircase. While performing such work, plaintiff stepped on long thin threaded metal rod. Plaintiff, who saw other threaded rods lying about construction site on prior occasions, described them as garbage that he would pick up & discard. Common law duty to provide employees with safe place to work not extend to hazards that are part of or inherent in, the very work employee is to perform. Annicaro v. Corporate Suites, Inc., 98 AD3d 542; 

Plaintiff Injured While Working to Determine if Water Damage Occurred

Second Dept. 2010. §200 Dismissed. Plaintiffs hired to repair parapet of roof. Plaintiffs’ supervisor directed plaintiffs to inspect the wall of adjoining building to determine if there was water damage behind the surface of the wall. Plaintiffs standing on scaffold using jackhammer to remove bricks from an area of the wall & 35 bricks fell off the wall, striking scaffold. This caused scaffold to move away from the wall & plaintiffs who were not wearing safety belts, fell in the gap between the scaffold and wall. Plaintiffs may not recover for the accident caused by the very condition plaintiff had undertaken to remedy. Gurung v. Arnav Retirement Trust, 79 AD3d 969;

Water on Floor Created by Boiler Repair Second Dept. 2007. §200 Dismissed. Water on Floor From Repair Work. During course of repairing a leaking boiler, plaintiff slipped & fell on water that had accumulated on floor of boiler room as a result of leak & additional release of water during the repair. Plaintiff cannot recover for common law negligence or Section 200 as accident caused by condition he had undertaken to fix. Bedneau v. NY Hosp. Med. Ctr. of Queens, 43 AD3d 845; 

November 4. “Alter Ego” Defense to 240(1) and 241(6) Causes of Action

Where defendant asserts an alter ego defense in Labor Law 240(1) and 241(6) causes of action, defendant claims plaintiff’s action is barred against it because it is entitled to the same exclusivity protection of the Workers’ Compensation Law of Section 11 prohibiting actions against plaintiff’s employer.

If defendant is held to be an alter ego of plaintiff’s employer, 240(1) and 241(6) Labor Law actions are dismissed against that defendant.  While the named entity in the lawsuit was not plaintiff’s employer, if such entity can show it was the alter ego company of plaintiff’s employer, such Labor Law causes of action are dismissed as a matter of law.

Defendant may establish itself as the alter ego of plaintiff’s employer by demonstrating,

One of the entities controls the other or

Both entities operate as single integrated entity.

Not Alter Ego Companies

That the two entities have a principal in common insufficient to establish they are alter egos.

Although Nest Seekers wholly owns Riverside, evidence the 2 companies operated as separate entities. Parties entered into a lease agreement establishing their separate responsibilities as landlord and tenant, and maintained their own bank accounts & filed their own taxes.

No evidence showing the relationship between the 2 companies such as payroll records or contracts, or other documents demonstrating that DRBS controlled defendant’s day to day operations or finances.

Although plaintiff’s employer was the general partner of defendant, they functioned as separate entities.  Plaintiff’s employer provided janitorial services for the buildings at issue, which were owned by defendant. 2 entities kept separate files & not commingle funds.

While plaintiff’s paychecks were issued by CJ Service, a payroll company funded by Four Little, Blair Perron’s owners formed the company simply as a payroll company.  Four Little failed to establish it was alter ego of CJ Service.

Entities were formed for different purposes & had different workforces performing different functions. “Although Waldorf presented evidence that the 2 companies were owned by the same holding company and shared facilities, the evidence also showed the entities were formed for different purposes and had different workforces performing different functions.”

Canal Corporation is not an alter ego of Thruway Authority as it failed to submit sufficient evidence to demonstrate Thruway Authority exercises complete domination and control of Canal Corporation’s day to day operations.

Companies Were Alter Egos of Each Other

While the 2 entities have separate certificates of incorporation, they share a president and director of finance, financial management, administrative headquarters, an insurance policy and a common purpose.

WHHOC, through its governing board, i.e., the Parish Council, exercised domination and control over the school, completely controlling its day to day functions including its decision making and finances. WHHOC owned the properties on which the school and St. Spyridon Church were situated. The school and church were unincorporated divisions of WHHOC that functioned in accordance with WHHOC’s directives.

Corporation was formed to carry out Authority’s duty to maintain State’s canal system on behalf of State of NY. Evidence of shared purpose, intermingling of finances & unity of management, sufficient to establish alter ego status.

First Dept.

First Dept. 2023. Not Alter Ego. Not Control Day to Day Operations. 240(1) Not Dismissed. Claims against Riverside not barred by exclusivity provision of Workers’ Compensation Law because nothing in the record indicates Riverside was alter ego of plaintiff’s employer, defendant Nest Seekers. Although Nest Seekers wholly owns Riverside, evidence was the 2 companies operated as separate entities. The parties entered into a lease agreement establishing their separate responsibilities as landlord and tenant, and maintained their own bank accounts & filed their own taxes. As no evidence Nest Seekersdominated and controlled Riverside’s day to day operations, or any evidence of comminglingof assets and resources, Riverside was not Nest Seeker’s alter ego as matter of law.Alberico v. Riverside Unit C, LLC, 220 AD3d 504;

First Dept. 2019. Not Alter Ego. Defendant failed to establish that it was DRBS’s alter ego. There was no evidence showing the relationship between the 2 companies such as payroll records or contracts, or other documents demonstrating that DRBS controlled defendant’s day to day operations or finances. Arias v. Anjo Mfg. Co., Inc., 173 AD3d 506; 

First Dept. 2017. Not Alter Ego. Lessee of the premises failed to establish it was alter ego of plaintiff’s employer. While overlap in the ownership & management of 214-37 Northern Blvd. & plaintiff’s employer, 214-27 Northern Blvd. was separately incorporated for the purpose of leasing the premises, maintained a separate corporate address and maintained a separate bank account for which it paid for the renovations to the premises.  An understanding of the financial relationship between the 2 entities not clear from evidence offered. Reaves v. Lakota Constr. Group, Inc., 154 AD3d 637; 

First Dept. 2016. Not Alter Ego. Common Office Insufficient. Contrary to defendants’ contention that Glenwood Management Corp. was alter ego of plaintiff’s employer, 56^th Realty, LLC, evidence indicates Glenwood was the managing agent for 56^th Realty, consistent with their management agreement; that the two entities have a principal in common is insufficient to establish that they were alter egos. Further, plaintiff is suing not the principal but the corporation, which is a separate legal entity. Kolenovic v. 56^th Realty, LLC, 139 AD3d 588;

First Dept. 2016. Not Alter Ego.  While Plaintiff’s Employer Was General Partner of Defendant, Entities Functioned as Separate Entities. Defendant’s argument it was alter ego of plaintiff’s employer & that Workers’ Compensation Law therefore bars action against it, was rejected by court.  Although plaintiff’s employer was the general partner of defendant, they functioned as separate entities.  Plaintiff’s employer provided janitorial services for the buildings at issue, which were owned by defendant.  The two entities kept separate files and did not commingle funds.  Also, the Property Management Plan between the two entities stated that defendant did not have any employees and required plaintiff’s employer to indemnify defendant for any and all liability. Ocana v. Quasar Realty Partners, LP, 137 AD3d 566

First Dept. 2012. Not Alter Ego As Finances Not Integrated And No Control Over Employees. While an employee at a restaurant, plaintiff fell from unsecured ladder while exiting a mechanical room.  Premises were managed by Lawrence Rueben & leased to Four little. Pursuant to a management agreement, Four Little gave Blair Perrone responsibility for operations of the restaurant.  As Blair Perrone exclusively controlled & directed plaintiff’s work, and was his special employer, plaintiff’s recovery against Blair Perrone limited to workers’ compensation benefits.  While plaintiff’s paychecks were issued by CJ Service, a payroll company funded by Four Little, Blair Perron’s owners formed the company simply as a payroll company.  Four Little failed to establish it was alter ego of CJ Service. While Four Little funded CJ Service’s payroll, no evidence their finances were integrated, that they commingled asserts or that the principals failed to treat the entities as separate & distinct.  Also, Four Little neither controlled not directed CJ Service’s employees. Amil v. Lawrence Ruben Co., Inc., 100 AD3d 458;

First Dept. 2007. Not Alter Ego. Separate Entities. 240(1) Not Dismissed. New Palace did not demonstrate that Fran-Ju was its alter ego on the project. While they shared common owners and officers, Fran-Ju and New Place were separate entities, not a parent/subsidiary. Fran-Ju held the real property; New Palace ran the paint stores. Fran-Ju hired New Palace to run the renovation project, agreeing to fund the costs. Figueiredo v. New Palace Painters Supply Co., Inc., 39 AD3d 363; 

First Dept. 2005. Not Alter Ego. Fact that Solovieff Realty, Solow Building Company and Solow Management Corp. had related ownership and shared the same directors and officers was insufficient to establish were alter egos or joint venturers for the purpose of barring plaintiff’s claims under workers’ Compensation Law. Hughes v. Solovieff Realty Co., LLC, 19 AD3d 142;

First Dept. 2005. Not Alter Ego. There was no evidence that plaintiff’s employer exercised complete domination and control over defendant’s everyday operations. Gonzalez v. 310 W. 38^th, LLC, 14 AD3d 464;

First Dept. 2012. Claims Between The 2 Entities. Issue of Fact. Velastate asserted third party claim for indemnity & contribution against Thrift. The pendency of a claim asserted in litigation by one corporation against the other suggests that the entities have at least some adverse interests and in absence of some explanation it is impossible to conclude that Velastate & Thrift, however they may be related, function as one company & share a common purpose to such extent that they should be considered alter egos. Mendoza v. Velastate Corp., 99 AD3d 401;  

First Dept.

Defendant Entity Was Alter Ego of Plaintiff’s Employer. Action Dismissed

First Dept. 2011. Defendant Entity Alter Ego of Employer. Action Dismissed. As plaintiff’s employer & defendant functioned as one company, plaintiff’s claims against defendant barred by workers’ compensation Law Section 11. While the 2 entities have separate certificates of incorporation, they share a president & director of finance, financial management, administrative headquarters, an insurance policy and a common purpose. Also, plaintiff’s employer is permanent member of defendant, defendant owns the building in which plaintiff was injured, and has no employees, while plaintiff’s employer pays all the building’s operating expenses and has employees to operate the facility. Carty v. East 175^th St. Hous. Dev. Fund Corp., 83 AD3d 529; 

First Dept. 2011. Defendant Alter Ego of Plaintiff’s Employer. Action Dismissed. Evidence was that the school where plaintiff worked at the time of accident, was alter ego of defendant WHHOC.  WHHOC, through its governing board, i.e., the Parish Council, exercised domination and control over the school, completely controlling its day to day functions including its decision making and finances. WHHOC owned the properties on which the school & St. Spyridon Church were situated. The school and church were unincorporated divisions of WHHOC that functioned in accordance with WHHOC’s directives. Given such proof of alter ego relationship, plaintiff deemed employee of WHHOC, thus, requiring dismissal of action against WHHOC pursuant to Section 11 of Workers’ Compensation Law. Coneo v. Washington Hgts. Hellenic Orthodox Church, Inc., 81 AD3d 525;  

First Dept. 2001. Alter Ego Rationale Applied. Plaintiff Limited to Workers’ Compensation Benefits. Plaintiff, a building service aide employed by Memorial Sloan-Kettering Cancer Center sustained injury while on loading dock at Memorial Center for Cancer and Allied Diseases Hospital. The Center and the Hospital, together with the Sloan-Kettering Institute for Cancer Research & SKI Realty, comprise a single integrated entity & while legally separate, are treated as one employer for purposes of Workers’ Compensation Law. While individual entities have separate certificates of incorporation, they are all directed by common management and function under a combined budget. In their respective capacities they issue a combined audited financial statement. There is one human resources department and a single policy manual sets forth common rules and policies of employment. Common payroll department issues paychecks to all employees and a single premium is paid for an insurance policy covering all 4 entities.  The organization holds itself out to the public an integrated institution known as Memorial Sloan-Kettering Cancer Center. Plaintiff limited to workers’ compensation benefits. Ramnarine v. Memorial Center, 281 AD2d 218;

Second Dept.

Second Dept. 2019. Not Alter Ego. Defendant moving for summary judgment on the defense of Workers’ Compensation Law must show that it was the alter ego of plaintiff’s employer. Defendant may establish itself as the alter ego of plaintiff’s employer by establishing that one of the entities controls the other or that both entities operate a single integrated entity.  A mere showing that the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day to day operations of the other. Defendant failed to show that it & Westchester Management operated as a single integrated entity. In an affidavit, Mr. Bergman stated he & his wife control 15 entities, including the defendant. However, Bergmans maintained defendant & Westchester Management are separate and distinct from each other. Neither entity is a subsidiary of the other, the entities were formed for different purposes, defendant’s bank account is separate from Westchester Management & Schedule C’s are filed for each entity for tax purposes. Salinas v. 64 Jefferson Apts., LLC, 170 AD3d 1216;

Second Dept. 2019. Not Alter Ego. Defendant must establish itself as alter ego of a plaintiff’s employer by demonstrating one of the entities controls the other or that the two operate as a single integrated entity. Waldorf failed to make a prima facie showing that it was an alter ego of plaintiff’s employer. Although Waldorf presented evidence that the 2 companies were owned by the same holding company and shared facilities, the evidence also showed the entities were formed for different purposes and had different workforces performing different functions. As there was evidence that plaintiff’s foreman was a Waldorf employee and that the same foreman was the person who caused the freight elevator door to close on plaintiff’s head, Waldorf not entitled to dismissal of Labor Law causes of action. Robles v. Taconic  Mgt., 173 AD3d 1089;

Second Dept. 2017. Not Alter Ego. Although defendant submitted evidence that it & A-Val Corp, were related entities, such evidence failed to establish defendant and A-Val Corp., plaintiff’s employer, operated as a single integrated unity, or that either company controlled the day to day operations of the other. As such, there were issues of fact whether exclusivity provisions of the Workers’ Compensation Law barred the action against defendant because it was the alter ego of plaintiff’s employer. Guminiak v. VGFC Realty II, LLC, 153 AD3d 681;

Second Dept. 2014. Not Alter Ego. Third party defendant presented no specific evidence as to financial structure of subject entities or business locations of those entities. Although it submitted evidence that it and alleged related entities maintained Workers’ Compensation insurance through a certain trust, evidence not show whether plaintiff was granted benefits as employee of third party defendant or employee of another entity completely unrelated to third party defendant for Workers’ Compensation purposes. As such, third party defendant failed to show it was entitled to exclusivity defense under Workers; Compensation Law Section 11, based on an alter ego theory. Henderson v. Gyrodyne Co. of Am., Inc., 123 AD3d 109;

Second Dept. 2014. Not Alter Ego. Defendant failed to show it was the alter ego of injured plaintiff’s employer. Rather, defendant merely showed the 2 entities are related, which was insufficient, since it did not demonstrate that one of the entities controls day to day operations of the other. Zhiwei Mao v. Levinson Realty Corp., 117 AD3d 944;

Second Dept. 2012. Not Alter Ego. The defense afforded to employers by exclusivity provisions of the Workers’ Compensation Law may also extend to suits brought against an entity which is found to be the alter ego of the corporation which employs the plaintiff. Although defendants submitted some evidence that several of defendants and plaintiff’s employer were related entities, evidence failed to establish revealed existence of issue of fact as to whether defendants’ relationships with plaintiff’s employer entitled them to rely on workers’ compensation defense. Andrade v. Brookwood Communities, Inc., 97 AD3d 711; 

Second Dept. 2012. Not Alter Ego. LDR was not the alter ego of JMK and KMK and LDR were not alter egos of one another. Saldivar v. Lawrence Dev. Realty, LLC, 95 AD3d 1101;

Second Dept. 2010. Not Alter Ego.  Protection against lawsuits by injured workers which is afforded to employers by Workers’ Compensation Law Sections 11 and 29(6) also extends to entities which are alter egos of the entity employing the plaintiff. Defendant may establish itself as the alter ego of plaintiff’s employer by demonstrating that one of the entities controls the other or that the two operate as single integrated entity.  A mere showing the entities are related is insufficient where a defendant cannot demonstrate that one of the entities controls the day to day operations of the other.  Defendant failed to show here that it and plaintiff’s employer operated as single integrated entity or that either company controlled day to day operations of the other. Samuel v. Fourth Ave. Assoc., LLC, 75 AD3d 594; 

Second Dept. 2007. Not Alter Ego. Defendant failed to establish plaintiff’s action was barred by plaintiff’s receipt of workers’ compensation benefits from her employer. Defendants offered no evidence suggesting existence of either a joint venture or alter-ego relationship between them & plaintiff’s employer. Masley v. Herlew Realty Corp., 45 AD3d 653;  

Defendant Was Alter Ego of Plaintiff’s Employer. Action Dismissed.

Second Dept. 2015. Alter Ego Defense. Plaintiff injured performing construction work on premises owned by defendant. Defendant established it was alter ego of plaintiff’s employer, as the 2 companies operated as single integrated entity. Haines v. Verrazano of Dutchess, LLC, 130 AD3d 871;  

Second Dept. 2014. Alter Ego Defense. Defendant established under the workers’ Compensation Law Section 11 and 29(6) that it and plaintiff’s employer, the non-party Winter Bros. Waste System, operated as single integrated entity. McDonald v. Winter Bros. Transfer Sta. Corp., 120 AD3d 1315;  

Second Dept. 2013. Alter Ego Defense Granted. Defendant moving for summary judgment on exclusivity of Workers Compensation Law under the claim it was alter ego of plaintiff’s employer, must demonstrate that one of the entities controls the other or that both entities operate as single integrated entity. Here, defendant Luvin Construction Corp. and Jose Sanchez provided evidence that Luvin Construction Corp. and nonparty FML Contracting, the employer of plaintiff and Sanchez, operated as a single integrated entity & thus a defense under Workers’ Compensation Law. Quizhpe v. Luvin Constr. Corp., 103 AD3d 618;

Third Dept.

Third Dept. 2018. Not Alter Ego. While plaintiff seeks to hold defendant liable as 2 of its owners are also partial owners of OAC and thus claims they were alter egos of one another, evidence was that OAC and defendant were separate entities formed for distinct purposes & that their finances and assets were not commingled. Lopez v. 6071 Enters., LLC, 159 AD3d 1092;  

Alter Ego Defense Established

Third Dept. 2010. Alter Ego Defense Established.  Decedent fell to his death from one of the movable dams at Lock 9 of the Erie Canal on Mohawk River. Positioned on a catwalk below the bridge decking, decedent was using a pole to clear a small tree lodged in the dam’s upper gate when he fell, landing in Mohawk River and drowning. A parent company may be deemed to be employer of an employee of subsidiary corporation for workers’ compensation purposes if the subsidiary functions as the alter ego of the parent. Here, the Corporation is wholly owned subsidiary of NY State Thruway Authority. Although standard for finding alter ego relationship is high, requiring direct intervention by the parent in management of the subsidiary to such an extent the subsidiary’s paraphernalia of incorporation, directors and officers are completely ignored, here, the Corporation is an arm of the Authority, justifying a finding the Corporation is the Authority’s alter ego. Corporation was formed to carry out Authority’s duty to maintain State’s canal system on behalf of State of NY. Evidence of shared purpose, intermingling of finances & unity of management, sufficient to establish alter ego & thus, dismissal of Labor Law causes of action. Len v. State of NY, 74 AD3d 1597;     

Fourth Dept.

Fourth Dept. 2016. Not Alter Ego. Although it is well settled that protection against lawsuits brought by plaintiffs which is afforded to employers by Workers’ Compensation Law Section 11 and 29(6) also extends to entities which are alter egos of the entity which employs the plaintiff, here, defendants failed to establish that they functioned as alter egos of plaintiff’s employer. A defendant may establish itself as the alter ego of plaintiff’s employer by demonstrating that one of the entities controls the other or that both entities operate as single integrated entity.  However, a mere showing entities are related is insufficient where, as here, defendant cannot demonstrate that one of the entities controls daily operations of the other.  Closely associated corporations, even those sharing directors and officers, will not be considered alter egos of each other if they were formed for different purposes, neither is a subsidiary of the other, their finances are not integrated, their assets are not commingled and the principals treat the two entities are separate and distinct. Cleary v. Walden Galleria LLC, 145 AD3d 1524;

Fourth Dept. 2009. Not Alter Ego. Plaintiff fell from elevated platform while repairing a non-functioning signal lamp at a lock on Erie Canal. Thruway Authority and the Canal Corporation are not alter ego corporations, nor are they engaged in a joint venture to operate the canals. Defendants are not entitled to summary judgment upon the ground the Canal Corporation is an alter ego of Thruway Authority as they failed to submit sufficient evidence to demonstrate Thruway Authority exercises complete domination and control of Canal Corporation’s day to day operations. Also, defendants not entitled to summary judgment based on joint venture theory. Indispensable to creation of joint venture is a sharing of profits and losses of the business and defendants failed to establish that the 2 entities did so. Buckmann v. State of NY, 64 AD3d 1137. Buckman v. State of NY, 64 AD3d 1137;

November 2. No Fall From Elevated Height. Striking Object Not Result From a Force of Gravity. Labor Law 240(1) Awarded. What is Going on Here?

Second Dept. decision, Rogers v. Peter Scalamandre & Sons, Inc., 2024 NY Slip Op 05361, issued October 30, 2024, it was held a worker suffering an injury at an elevated height while working in a boom lift, was within the protection of Labor Law 240(1), despite the worker not falling to the ground, but rather, remained in the boom lift and the object striking the plaintiff’s lift basket was not the result of a force of gravity but rather, a malfunction of equipment.   

In Rodgers, worker was using a boom lift to install louvers (slanted strips to allow flow of ventilation) near the roof line of a building. Worker was inside the basket of the lift, wearing a safety harness attached to the basket. Upon installing the louvers, the worker maneuvered the lift so it was extended in a nearly vertical position, with the lift basket 30 feet above the ground.  At that point, the arm of the lift suddenly “telescoped in inward”, causing injury to the worker. The term, “telescoped in” likely means the boom lift conflated, causing the arm of the lift to strike the basket. Investigation concluded the boom lift malfunctioned from poor maintenance.

Appellate Court held there was a 240(1) violation, citing, the holding in Mora v. 1-10 Bush Term. Owner, LP, 214 AD3d 785 (2^nd Dept. 2023), “Whether a device provides proper protection is a question of fact, except when the device collapses, moves, falls, or otherwise fails to support the plaintiff and his or her materials.”  The decision cited deposition testimony of eyewitness of the boom lift arm suddenly telescoped inward.

Such facts are insufficient for 240(1) liability, which requires either a fall from an elevated height or an object striking the boom basket as a result of a force of gravity. Neither occurred in Rodgers. Rather, there was merely an accident occurring at an elevated height.

Gasques v. State of New York, 15 NY3d 869 Court of Appeals, 2010,plaintiff injured during course of his work of painting a bridge.  Plaintiff’s hand crushed as a scaffold continued to move under the impetus of one of its motors, while his hand was trapped between external motor control on scaffold & the steel of the bridge. As injury was not direct consequence of application of the force of gravity to an object or person, 240(1) claim was dismissed.

Mohamed v. City of Watervliet, 106 AD3d 1244, a 2013 Third Dept. decision, dismissed the 240(1) action. Plaintiff struck by backhoe bucket while working in a trench. Coworker making a T-connection to existing water main allowing new fire hydrant to be connected. After lowering T-connection into 9 foot trench, Manning exited backhoe to check on placement of T-connection. Manning then returned to backhoe, the bucket of which remained suspended 3.5 feet above plaintiff. However, bucket then descended into the trench crushing plaintiff.

Plaintiff’s expert on Mohamed concluded accident occurred by Manning accidentally bumping backhoe’s joystick, causing the bucket to lower and hit plaintiff. As backhoe struck plaintiff not because of gravity but because of mechanical operation by a coworker, 240(1) claim dismissed. It was held there was no falling object, as harm not flow from application of force of gravity to an object, but from usual and ordinary dangers of a construction site.

Guallpa v. Canarsie Plaza, LLC, 144 AD3d 1088 (2^nd Dept. 2016), plaintiff, an ironworker, standing on ladder installing nuts & bolts into elevated steel beam. At this time, plaintiff’s foreman operating hi-lo forklift on ground & machine either struck or pushed elevated steel beam connected to steel beam that plaintiff was working with, causing steel beam to move & pin plaintiff’s left elbow against a concrete wall next to steel beam. Defendants established accident not involve gravity related or elevation-related hazard. In Rogers, there was no fall from an elevated height and the boom basket was struck when the arm of the lift “malfunctioned.” As there was a malfunction, causing the inward movement, such arm lift not strike the boom basket from a force of gravity.  Absent requisite factors for 240(1) liability, an accident merely occurring at an elevated height, as cited in the above decisions, including the Court of Appeals, is insufficient to impose 240(1) liability.

November 1. Defining “Construction Work” For §241(6) Cause of Action. 12 NYCRR 23-1.4(b)(3). Installation of Electrical Cables.  Eye Protection, 23-1.8(a).

Labor Law 241(6) is limited to construction, demolition and excavation. Industrial Code 23-1.4(b)(3), defines “construction work” as,

All work of the types performed in the construction, erection, alteration, repair, maintenance, painting or moving of buildings or other structures, whether or not such work is performed in proximate relation to a specific building or other structure and includes, by way of illustration but not by way of limitation, the work of hoisting, land clearing, earth moving, grading, excavation, trenching, pipe and conduit laying, road and bridge construction, concreting, cleaning of the exterior surfaces including windows of any building or other structure under construction, equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.

241(6) has a nondelegable duty to premises owners and general contractors. As such, premises owners and general contractors are liable under 241(6) even where they did not supervise, direct or control the injury producing work.  However, unlike 240(1), 241(6) allows for comparative negligence.

Injured Installing Electrical Cables at a Business Premises

Second Dept., in October 30, 2024 decision, Lopez v. Kamco Servs., LLC, 2024 NY Slip Op 05338, addressed whether an accident arose out of construction work as to §241(6) cause of action. In that case, Kamco Services retained plaintiff’s employer, Switch Electric, to perform electrical work.  Plaintiff assisted in the work of installation of electrical cables to allow distribution of electricity to a tent used by Kamco to store materials. Plaintiff alleged he was struck in the left eye by an electrical cable while attempting to connect the cable to a disconnector and that he was not provided googles or other eye protection in violation of Industrial Code 23-1.8(a).   

The appellate noted that “construction work” definition of 23-1.4(b)(3) includes “equipment installation and the structural installation of wood, metal, glass, plastic, masonry and other building materials in any form or for any purpose.”  It was held, “since [plaintiff] was engaged in the installation and furnishing of electrical cables, Kamco failed to establish, prima facie, that Labor Law 241(6) was inapplicable to [plaintiff’s] activities. Such holding reversed the motion court decision dismissing the 241(6) cause of action.

The decision noted, “The courts have generally held that the scope of Labor Law 241(6) is governed by 23-1.4(b)(3), which defines construction work expansively.” Appellate court dismissed defendant Kamco’s motion to dismiss the 241(6) cause of action as it failed to establish a prima facie case. 

23-1.8(a). Eye Protection

It was also held plaintiff cited a requisite specific safety Industrial Code of 23-1.8(a) and such code should not have been dismissed as triable issues of fact whether plaintiff was engaged in work that might endanger his eyes, whether approved eye protection was provided and whether Kamco’s failure to require plaintiff to wear safety googles was a proximate cause of the accident. Remember, a general safety code does not support a 241(6) cause of action, resulting in dismissal of the 241(6) action. Courts determine whether an Industrial Code is sufficiently specific.

23-1.8(a). Eye Protection.  Approved eye protection equipment suitable for the hazard involved shall be provided for and shall be used by all persons while employed in welding, burning or cutting operations or in chipping, cutting or grinding any material from which particles may fly, or while engaged in any other operation which may endanger the eyes.

See the appellate decisions below from all 4 departments as to addressing what work activities constitute “construction work” under 23-1.4(b)(3) and for eye protection under 23-1.8(a).

Work Held to be Within 23-1.4(b)(13) or Issue of Fact

First Dept.

Painting

First Dept. 2022. 23-1.4(b)(13) Applied as Plaintiff Injured While painting & plastering in vacant apartment. Fuentes v. Lindsay Park Hous. Corp., 203 AD3d 487;  

Moving Rolling Scaffold

First Dept. 2018. 23-1.4(b)(13) Applied as Plaintiff Hired to erect, move & adjust rolling scaffolding to facilitate inspection of Manhattan Bridge. Such work was construction & alteration within 23-1.4(b)(13). Moura v. City of NY, 165 AD3d 434;   

Preparing Materials For Work in Building

First Dept. 2018. 23-1.4(b)(13) Applied to plaintiff’s work of preparing materials to be brought to upper floors to be used in asbestos abatement project.  Sawczyszyn v. NYU, 158 AD3d 510;

Lighting

First Dept. 2009. 23-1.4(b)(13) Issue of Fact. Whether Plaintiff doing more than merely changing a light bulb & thus engaged in repair work. Gary v. Flair Beverage Corp., 60 AD3d 413;

First Dept. 1999. 23-1.4(b)(13) Applied to repair work of replacing ballast & sockets, disconnecting wires, stripping wires & reconnecting them in repair of fluorescent light fixture collapse. Piccione v. 1165 Park Avenue, Inc., 258 AD2d 357;

Cleaning Office Window Setbacks

First Dept. 2000. 23-1.4(b)(13) Claim not dismissed. Where work of cleaning office window setbacks may constitute “construction.” Noriega v. State Street Bank Trust Co., 271 AD3d 313;

Fall From Steps of Construction Trailer

First Dept. 2021. 23-1.4(b)(13) Issue of Fact. Whether plaintiff engaged in construction activity when slipped & fell on steps of trailer at construction site. Karandisecky v. City of NY, 200 AD3d 520;

Second Dept.

Annual Resurfacing of Parking Lot

Second Dept. 2022. 23-1.4(b)(13) Claim not dismissed as defendant failed to show annual resurfacing of a parking lot not constitute construction, excavation or demolition Work. Seem v. Premier Camp Co., LLC, 200 AD3d 921;

Installing Electrical Sign

Second Dept. 2021. 23-1.4(b)(13) Not Dismissed. Plaintiff installing electrical channel letter sign on building’s exterior. Plaintiff was to install letters 3 Feet Tall & made of plexiglass & aluminum on metal soffit. While inside soffit, portion of soffit collapsed. Alberici v. Gold Medal Gymnastics, 197 AD3d 540;

Ladder Fall While Reaching For a Bag

Second Dept. 2020. 23-1.4(b)(13) Issue of Fact. Whether plaintiff, who fell from ladder while reaching to remove a bag, so painting could be performed. Mejia v. Cohn, 188 AD3d 1035;     

Repairing Light Fixture

Second Dept. 2019. 12 NYCRR 23-1.4(b)(13). Engaged in “Repair” Work. Plaintiff fell from atop 8-foot wooden A-frame ladder while working on light fixture at Nassau Coliseum.  While plaintiff’s testimony provided that some of lighting poles only required tightening or replacement of a light bulb, more intensive work was also required on other lighting poles to make them function. This fell within “repairing” a light fixture, within scope of 240(1). As plaintiff was engaged in repair of lighting fixtures, defendants failed to establish 241(6) was inapplicable to plaintiff’s activities.  Wass v. County of Nassau, 173 AD3d 933;

Painting

Second Dept. 2012.23-1.4(b)(13) appliedas application of protective coating to building roof  functional equivalent of “painting, ” anenumerated activity under 23-1.4(b)(13). Pittman v. SP Lenox Realty, LLC, 91 AD3d 738; 

Second Dept. 2002. 23-1.4(b)(13) Applied as plaintiff fell from ladder while painting a house. Blair v. Cristani, 296 AD2d 471;  

Power Washing Was Painting Work

Second Dept. 2013.  Defendants failed to demonstrate that plaintiff, who was injured while power washing buildings in preparation for painting them, was not engaged in in specifically enumerated activity under 23-1.4(b)(13). Painting is an activity enumerated under such code & power washing was in preparation for & a contractual part of the painting work. As such, painting not constitute “routine maintenance” excluded from 241(6) but rather, constituted surface preparation , an integral part of the painting process. Dixson v. Waterways at Bay Pointe Home Owners Assn., Inc., 112 AD3d 884;

Painting Equivalent

Second Dept. 2012.23-1.4(b)(13) applied as application of polyurethane to wooden floor functional equivalent of “painting.” Pittman v. SP Lenox Realty, LLC, 91 AD3d 738;

Installing Microduct

Second Dept. 2012. 23-1.4(b)(13) Applied. While Installing Microduct in Dumbwaiter Shaft, Plaintiff struck by counterweight for dumbwaiter. Installation of Microduct, which extended into apartments through holes in dumbwaiter shaft, was “alteration” of building. McLean v. 405 Webster Ave. Assocs., 98 AD3d 1090; 

Repairing Water Softener

Second Dept. 2002. 23-1.4(b)(13) applied where plaintiff suffered fall repairing broken water softener, as such work constituted construction work. Cameron v. City of Long Beach, 297 AD2d 773;

Installing Connection to Underground Wire

Second Dept. 2011. 23-1.4(b)(13) Applied where plaintiff fell from ladder installing connection from telephone pole to underground wire. Schick v. 200 Blydenburgh, LLC, 88 AD3d 684;

Rewiring Telephone System

Second Dept. 2008. Altering of Premises Constituted Construction Work Under 23-1.4(b)(13).  Plaintiff rewiring telephone system in attic crawl space when he fell through a sheet rock ceiling while trying to traverse gap in plywood path laid across ceiling joists. Becker v. ADN Design Corp., 51 AD3d 834;

Repairs to Refrigerated Warehouse

Second Dept. 2007. 23-1.4(b)(13) applied where plaintiff injured making repairs to refrigerated warehouse as to refrigeration malfunction, including replacing standard thermostat with digital electronic thermostat .  Juchniewicz v. Merex, 46 AD3d 623;

Repairing Oil Burner Suspended by Rods From Ceiling

Second Dept. 1995. 23-1.4(b)(13) Not Dismissed. Plaintiff injured working on oil burner suspended from ceiling of building by rods. As such, oil burner deemed part of building. Plaintiff engaged in “construction work.” Kinsler v. Lu-Four Associates, 215 AD2d 631;

Object Struck Plaintiff  While Removing Shipping Pallet Underneath It

Second Dept. 1995. 23-1.4(b)(13) Applied. Plaintiff injured when electrical transformer weighing 2500 pounds fell on his hand as he was attempting to remove a shipping pallet from underneath it. Abreu v. Manhattan Plaza Associates, 214 AD2d 526;

Replacing Tiles

Second Dept. 23-1.4(b)(13) Not Dismissed. Plaintiff fell from ladder after replacing 6 water damaged tiles in library’s auditorium.  Nooney v. Queensborough Pub. Lib., 212 AD3d 830; 

Third Dept.

Readying Tanks For Installation

Third Dept. 1990. 23-1.4(b)(13) Applied to work of readying tanks for installation which was integral part of project. Brogan v. IBM, 157 AD2d 76; 

Installing Computer Equipment in Office

Third Dept. 2000. 23-1.4(b)(13) Not Dismissed. Plaintiff fell From ladder while installing computer equipment in an office as 241(6) encompasses a building’s “alteration.” Smith v. Pergament Enterprises of SI, 271 AD2d 870;

Fourth Dept.

Sandblasting & Painting

Fourth Dept. 2005. 23-1.4(b)(13) Applied. 3 month long sandblasting & painting project was “construction activity.” Love v. New York State Thruway Authority, 17 AD3d 1000;   

Falling Glass at Construction Site

Fourth Dept. 2002. 23-1.4(b)(13) Not Dismissed. Plaintiff struck by falling piece of glass at construction site. Bald v. Westfield Academy & Central School, 298 AD2d 881;     

Replacing Parts of Light

Fourth Dept. 2002. 23-1.4(b)(13) Not Dismissed. Plaintiff received electric shock when replacing defective bulbs, ballasts & sockets in a freestanding Mobil sign at gas station. Hyslop v. Mobil Oil Corp., 296 AD2d 827; 

Repairing Door Locking Mechanism

Fourth Dept. 1996. 23-1.4(b)(13) Not Dismissed. Plaintiff injured repairing broken door closing mechanism. Form of Construction Work. Shapiro v. ACG Equity Associates, LP, 233 AD2d 857;    

Work on Cold Mill Processor

Fourth Dept. 1994. 23-1.4(b)(13) Applied. Plaintiff fell from ladder while performing work to Cold Mill Processor. Kozlowski v. Alcan Aluminum Corp., 209 AD2d 930; 

Fall From Utility Pole

Fourth Dept. 1990. 23-1.4(b)(13) Applied. Plaintiff fell from utility pole while installing HBO was “construction work” because it caused “alteration” to building. Dedario v. NY Telephone Co., 162 AD2d 1001;

23-1.8(a) Decisions as to Eye Protections

23-1.8(a) Specific Enough to Support 241(6) Cause of Action

First Dept. 2012.  Buckley v. Triborough Bridge & Tunnel Auth., 91 AD3d 508; 1999.  Galawanji v. 40 Sutton Place Condominium, 262 AD2d 55;

23-1.8(a). Foreseeable Risk of Eye Injury.

Comment. Defense of 23-1.8 action is the work performed by plaintiff offered no foreseeability of a danger to the worker’s eyes & as such, googles were not provided. Appellate decisions hold it is an issue of fact for jury to decide.  

First Dept.

First Dept. 2016. Defendant’s SJ Motion Denied as to 23-1.8(a). Whether plaintiff engaged in operation which may endanger the eyes. Plaintiff injured when screw he was driving into sheetrock using power drill sprang back, striking his eye.Paulino v. Bradhurst Associates, LLC, 144 AD3d 430;

First Dept. 2003. Whether an activity is protected by 23-1.8(a) requiring the furnishing of eye protection equipment is a jury question that turns on whether a particular activity involves a foreseeable risk of eye injury.  Fresco v. 157 E. 72^nd St. Condominium, 2 AD3d 326;

First Dept. 2012.Foreseeable risk of eye injury. Issue of fact. Hit in eye with lanyard hook.Buckley v. Triborough Bridge & Tunnel Auth., 91 AD3d 508;

First Dept. 1993.Foreseeable risk of injury was issue of fact where plaintiff drove a masonry nail through plywood & into concrete. Nail suddenly flew back, striking left eye.Cappiello v. Telehouse Inter, Corp. of America, 193 AD2d 478;

Second Dept.

Second Dept. 2015. Issue of Fact Whether 23-1.8(a) Applied to Injury From Pneumatic Nail Gun.  Whether foreseeable eye protection required.  Defendant’s motion denied.Plaintiff, employed as carpenter on renovation project, was hit in the left eye with a nail while using a pneumatic nail gun to attach molding around a window. 23-1.8(a) requires furnishing of eye protection equipment to employees “engaged in any … operation which may endanger the eyes.”  Issue of fact as to whether use of pneumatic nail gun made the possibility of eye injury foreseeable as to require eye protection.     Montenego v. P12, LLC, 130 AD3d 695;

23-1.8(a) Not Dismissed.

First Dept.

First Dept. 2017. Defendant’s SJ Motion Denied.  Plaintiff’s deposition testimony raised issue of fact whether plaintiff provided and used proper eye protection. Willis v. Plaza Constr. Corp., 151 AD3d 568;

First Dept. 2016. While grinding stone, debris went into plaintiff’s eye. Plaintiff aware of need for safety googles & requested googles. Employer told plaintiff to begin work sans goggles. No evidence of culpable conduct by plaintiff.Bundo v. 10-12 Cooper Square, Inc., 140 AD3d 535;

First Dept. 2002. Issue of Fact.  Plaintiff standing on ladder. Pencil thick data cable attached to grid in ceiling, swung away from grid, striking plaintiff’s eye.McBryne v. Ambassador Constr. Co., 290 AD2d 243;

First Dept. 1999. 23-1.8 Not Dismissed. Evidence not support defendant’s assertion that plaintiff would not have Worn protective goggles while engaged in grinding 0peration even if such goggles were provided.Galawanji v. 40 Sutton Place Condominium, 262 AD2d 55;

23-1.8 Dismissed. Not Factually Applicable.

First Dept. 2003. 23-1.8(a) Dismissed. Plaintiff not performing construction work. Plaintiff struck in eye by piece of wire while repairing a dishwasher.Chuchuca v. Redux Realty, 303 AD2d 239;

Second Dept.

23-1.8(a) Not Dismissed.

Second Dept. 2024. Defendants’ Motion Denied. Plaintiff injured dismantling a scaffold. Issue of fact whether defendants failure to require plaintiff to wear safety googles was a proximate cause of accident. Gonzalez v. City of NY, 2024 NY Slip Op 02801;   

Second Dept. 2024. 23-1.8(a) Not Dismissed. Defendant cited deposition testimony that plaintiff’s employer provided protective eyeglasses to all workers & required such eyeglasses be worn at all times. Plaintiff testified he never received such eyeglasses & that at time of accident was wearing his own safety glasses. Issue of fact whether plaintiff provided with approved eye protection equipment, whether he was wearing personally provided eye protection equipment & if so, whether he removed them prior to accident. Argueta v. City of NY, 223 AD3d 862;

Second Dept. 2016.Issue of Fact caused by contradicting deposition testimony whether safety googles available at work site.  Ramos v. Penn Tower, LLC, 136 AD3d 1009;  

Second Dept. 2008. Defendant’s SJ Motion as to Dismissal of 23-1.8(a) Denied. Right eye struck by piece of wood molding expelled from electric miter saw, causing blindness.Markey v. CFMM Owners Corp., 51 AD3d 734;

23-1.8(a) Dismissed. Plaintiff’s Actions Sole Proximate Cause of Accident.

Second Dept. 2010. Dismissed. Plaintiff’s Sole Action of removing protective eye gear to clean it absolved defendant of liability.Beshay v. Eberhart LP, 69 AD3d 779;

Second Dept. 2006. Dismissed. Although plaintiff owned safety goggles, chose not bring them when flooring work performed. using hammer to remove nail embedded in floor, struck in eye by piece of the nail. McCormack v. Universal Carpet Upholstery, 29 AD3d 542;

Second Dept. 2017. 23-1.8(a) Factually Inapplicable.  2 Falling Panels of Exhibition Booth Fell Striking Plaintiff. While plaintiff performing electrical work at Javits Center, 2 panels comprising the walls of an exhibition booth fell on him. Honeyman v. Curiosity Works, Inc., 154 AD3d 820;

Second Dept. 2011. 23-1.8(a) Dismissed Because Not Factually Inapplicable. While Measuring Door Frame While Performing Renovations to a Building, A Group of 20 Eight Foot Long Metal Studs Stacked Against Sheetrock, Fell, Striking Plaintiff in The Eye.Zamajtys v. Cholewa, 84 AD3d 1360;

Third Dept.

Third Dept. 1997. 23-1.8(a) Dismissed.  Plaintiff removed safety goggles because such goggles dirty & plaintiff continued working sans goggles.  Nail struck plaintiff’s eye when not wearing goggles.McLoud v. State of NY, 237 AD3d 783;

Fourth Dept.

Fourth Dept. 1996. Issue of Fact. Plaintiff’s drilling into concrete struck by piece of concrete.  McCune v. Black River Constructors, 225 AD2d 1078;

Fourth Dept. 2008. 23-1.8(a) Dismissed. Plaintiff hit face against ceiling joist while framing a house.Pilato v. Nigel, 48 AD3d 1133; 

23-1.8. “Any Other Operation Which May Endanger The Eyes”

First Dept.

First Dept. 2019. 23-1.8(a) Issue of Fact. Hammer Causing Nail to Strike Plaintiff’s Eye. While plaintiff was in process of demolishing a sidewalk bridge, a nail he was attempting to remove with a hammer struck him in the eye.  Whether demolishing a sidewalk bridge & removing nails are activities covered by 23-1.8(a) is an issue of fact. Roque v. 475 Bldg. Co., LLC, 171 AD3d 543;

Second Dept.

Second Dept. 2024. Plaintiff’s Motion Denied. Nail Gun.  Plaintiff injured while operating a nail gun to attach wood plates to a building roof when debris from a metal wire to which nails were secured, such that they could be loaded into the nail gun, flew off and hit his right eye. 23-1.8(a) requires the furnishing of eye protection equipment to employees who are “engaged in any … operation which may endanger the eyes.” Plaintiff failed to eliminate a triable issue of fact as to whether at the time of the accident, plaintiff was engaged in work that may endanger the eyes so as to require use of eye protection pursuant to the code. Chuqui v. Cong. Ahavas Tzookah, 226 AD3d 960;

Second Dept. 2015. 23-1.8(a). Issue of Fact. Plaintiff employed as carpenter on renovation project.  While using pneumatic nail gun to attach molding around a window, he was hit in left eye with a nail.  Plaintiff alleged not provided adequate eye protection while using nail gun. Defendant’s submissions failed to eliminate issue of fact of whether plaintiff engaged in work that may endanger the eyes so as to require use of eye protection pursuant to 23-1.8. Issue of fact whether plaintiff’s use of pneumatic nail gun made possibility of injury to his eye sufficiently foreseeable as to require eye protection. Also, issue of fact whether approved eye protection provided to plaintiff. Montenegro v. P12, LLC, 130 AD3d 695; 

Fourth Dept.

Fourth Dept. 2015. 23-1.8(a) Applied to Operating Pneumatic Nail Gun. Plaintiff was operating a pneumatic nail gun when a nail ricocheted & penetrated right eye.  Plaintiff’s use of the nail gun clearly falls within the regulatory definition of engaging “in any other operation which may endanger the eyes.”  Here, it was held such code section applied. Quiros v. Five Star Improvements, Inc., 134 AD3d 1493; 

Plaintiff’s Comparative Negligence in Context of 23-1.8(a)

Fourth Dept. Fourth Dept. 2015. Plaintiff’s Motion Denied. Issue of Fact as to Comparative Negligence as to 23-1.8(a).  Triable issue of fact as to whether defendant provided eye protection, or made such protection available, to plaintiff, and if so, whether plaintiff was comparatively negligent in refusing such eye protection.  Court noted that even assuming plaintiff established defendant violated 23-1.8(a), any such violation does not establish negligence as a matter of law but is merely some evidence to be considered on question of defendant’s negligence. Quiros v. Five Star Improvements, Inc., 134 AD3d 1493;

October 30. “Belief” of Plaintiff’s Supervisor That Available Ladders Were in Vicinity of Plaintiff’s Work Area Insufficient For Recalcitrant Worker Defense

Labor Law §240(1) is a strict liability statute, meaning comparative negligence is not a defense.  A defense to 240(1) is plaintiff’s actions are the sole proximate cause of an accident.  One instance where a plaintiff is held to be the sole cause of an accident is where the plaintiff is “recalcitrant.”  Establishing a plaintiff was a recalcitrant worker, defendant must demonstrate 4 events.

Adequate safety devices available to plaintiff.

Plaintiff knew safety devices were available & plaintiff aware expected to use safety devices.

Plaintiff chose for no good reason not to use safety devices.

Accident not have occurred if plaintiff used safety devices.

If a defendant establishes all 4 events occurred, plaintiff is considered to be the sole proximate cause of the accident, resulting in dismissal of the 240(1) action. In a First Dept. decision issued on October 29, 2024, DeOleo v. 90 Fifth Owner, LLC, 2024 NY Slip Op 05306, plaintiff was assigned to caulk windows as part of a building renovation. The windows were 12 feet above the floor. Plaintiff testified he was told by his supervisor “to complete the task however he could.” Placed a bucket on top of a convector (heating device that warms a room by creating a current of hot air) to reach the windows. When dismounting from the bucket, plaintiff stepped into a hole in the convector cover.  

As a result, plaintiff suffers a fall from a height and there was 240(1) liability as the bucket plaintiff stood on was an inadequate safety device for the work he was performing. Plaintiff also established he had no access to ladders, scaffolds or other safety equipment.  Defendant asserted plaintiff was a recalcitrant worker because plaintiff knew a ladder was available and chose not to use it. However, it was held a statement of plaintiff’s supervisor that he believed ladders were located in the vicinity of his work area was insufficient to raise an issue of fact as to whether plaintiff was a recalcitrant worker.

The court held a supervisor’s “belief” of a ladder present was not good enough to defeat plaintiff’s motion for summary judgment.  While the court did not say it, such statement by the supervisor amounted to speculation. Speculation cannot defeat summary judgment. The supervisor had to assert where the ladder(s) were located in the vicinity of plaintiff’s work area and that he came to that conclusion by personal observation.  If he was told the ladder(s) was in the vicinity, it would likely be held as inadmissible hearsay.    

Decisions below also hold plaintiff was not a recalcitrant worker in accidents involving ladders.

No Evidence Plaintiff Expected to Use Certain Equipment

First Dept.

First Dept. 2020. Not Recalcitrant Worker. Plaintiff made showing 240(1) violated by submitting his uncontradicted deposition testimony of falling off a metal A-frame ladder that was shaking and leaned unevenly toward one of its legs, lacking a rubber protective foot. Plaintiff complained to supervisor of the ladder shaking earlier in the day and supervisor responded by ordering plaintiff to continue using such ladder. Even if adequate ladder was available, defendants failed to show that plaintiff knew he was expected to use it or that he chose not to do so for no good reason. Garces v. Windsor Plaza, Inc., LLC, 189 AD3d 539;

First Dept. 2018. Not Recalcitrant Worker as Defendant Not Establish Plaintiff Was Specifically Instructed to Use Particular Safety Device Other Than Ladder And Plaintiff Refused.  White v. 32-01 Steinway, LLC, 165 AD3d 449;

First Dept. 2018. Plaintiff’s decision to use a makeshift ladder that his coworkers were also allegedly using was not sole proximate cause of accident where plaintiff was never instructed not to use it. Also, as no proper safety device was provided, that fact that plaintiff’s boots may have been untied or that he may have been descending the makeshift ladder backwards was not sole proximate cause of accident. Jarzabek v. Schafer Mews Hous. Dev. Fund, 160 AD3d 412;

First Dept. 2017. While plaintiff violated employer’s safety manual by standing on the top cap of 6-foot frame ladder to reach his work, there was also evidence that the fall caused by ladder’s side hinge breaking and the ladder collapsing, and not the method in which he used the ladder.  As such, plaintiff not sole proximate cause of accident. Manfredonia v. Gateway Sch. of NY, 150 AD3d 434;

First Dept.  2015. No Evidence Plaintiff Received any “Immediate And Active Direction” Not to Use The Ladder.  Recalcitrant Worker Defense Denied.  Phillips v. Powercrat Corp., 126 AD3d 590;

First Dept. 2014. Not Recalcitrant Worker. Plaintiff Not Expected to Use Another Ladder. Plaintiff established 240(1) liability by his testimony that while attempting to descend from the third to the second rung of an unsecured wooden A-frame ladder, the ladder, which had worn legs and no rubber tips, suddenly slipped and collapsed, causing a fall. Regardless of whether a lift or another ladder were available at the job site, there was no showing plaintiff was expected, or instructed, to use such devices and for no good reason chose not to do so. Kuras v. Cornell Univ., 118 AD3d 488;

First Dept. 2008. Not Recalcitrant Worker. Not Instructed to Use Certain Equipment. Plaintiff struck by unsecured pipe and then he either fell from the ladder he was standing on or the ladder itself failed. No evidence plaintiff chose not to use available safety device. Plaintiff’s explanation for failing to use a chain to secure the pipe prior to cutting through it for removal was that there was no place to attach the chain. President of plaintiff’s employer never stated plaintiff was instructed to use a chain to secure the pipe and that plaintiff had no good reason not to do so. Kosavick v. Tishman Constr. Corp. of NY, 50 AD3d 287;

No Instruction to Worker. Not Recalcitrant Worker. Liability Imposed.

First Dept. 2024. 240(1) Liability Imposed. Detachable Ladder. No Evidence Plaintiff Knew Expected to Use Ladder. Plaintiff fell 4 feet while attempting to descend from outrigger platform on a scaffold by climbing down the cross bracing under the platform. Plaintiff established defendants failed to provide ladder. Defendants contended there were ladders readily available on site & plaintiff was recalcitrant in failing to use such ladders. However, no evidence that plaintiff knew he was expected to use such ladders but for no good reason chose not to do so. No evidence detachable ladder which was used as means of different access to different floors of the scaffold was suitable alternative means of access for outrigger platform. No evidence plaintiff instructed to use, or knew he was expected to use detachable ladders. Ortiz v. City of NY, 224 AD3d 631;

First Dept. 2021. 240(1) Liability Imposed.No evidence plaintiff specifically instructed to use particular safety device other than ladder & plaintiff refused. Not recalcitrant worker. Morales v. 2400 Ryer Ave. Realty, LLC, 190 AD3d 647;

First Dept. 2018. 240(1) Liability Imposed. Because sidewalk congested with pedestrian traffic, plaintiff set up ladder parallel to building & straddled atop the ladder, one foot on each side. While working with a drill, plaintiff lost balance, ladder started to fall, plaintiff jumped off ladder. Manner in which plaintiff set up ladder not evidence plaintiff sole proximate cause of accident as there is no dispute ladder unsecured & no other safety devices provided. Plaintiff not recalcitrant worker as defendants not establish he was specifically instructed to use particular safety device other than ladder & he refused. White v. 31-01 Steinway, LLC, 165 AD3d 449;    

Defendant’s Affidavit Vague as to Available Safety Devices. Not Recalcitrant Worker.

First Dept. 2017.Plaintiff, an electrician, reached out for ladder permanently affixed to a wall. As he placed his right hand & foot on ladder, ladder moved away from him, causing fall. Plaintiff’s testimony ladder shifted established 240(1) violation. While vice-president of plaintiff’s employer stated in affidavit safety harnesses & other safety devices available to plaintiff, affidavit vague as to what other unspecified safety devices were available, where plaintiff should have attached harness, or whether available anchorage points. Garcia v. Church of St. Joseph of the Holy Family of City of NY, 146 AD3d 524; 

Using Method of Access to Work Area. Not Recalcitrant Worker.

First Dept. 2012. Plaintiff not Recalcitrant Worker. Choosing to use unsecured ladder over interior stairway as no evidence workers permitted to use such stairway or use of ladder was misuse of ladder. Eustaquio v. 860 Cortlandt Holdings, Inc., 95 AD3d 548;

Plaintiff Not Directed to Stop Working in Debris Filled Room

First Dept. 2016. Not Recalcitrant Worker. Plaintiff’s Use of 6 Foot Ladder, Causing Him to Stand on Top Step. Not proximate cause of accident as 8 Foot ladder could not be opened in the space.Plaintiff electrician fell from A-frame ladder as he attempted to descend ladder. Plaintiff’s use of 6 foot ladder requiring plaintiff to stand on top step not make plaintiff sole proximate cause of accident where 8 foot ladder could not be opened in the space because of presence of construction debris. While site safety manager told plaintiff he should not work in the room as it was unsafe because of debris accumulation, such manager denied directing plaintiff to stop work, as such manager not possess such authority. Saavedra v. 89 Park Ave. LLC, 143 AD3d 615;

Second Dept.

Second Dept. 2023. Not Recalcitrant Worker. Plaintiff fell from roof of single family house while engaged in construction work. Defendant did not establish plaintiff aware of location of safety devices  or was expected to use them. Santiago v. Hanley Group, Inc., 2023 NY Slip Op 02549;

Second Dept. 2015. Not Recalcitrant Worker. Plaintiff used a scaffold and climbed over a railing, rather than use a permanent ladder that was 30 feet from the scaffolding ladder to access his work area. No one instructed plaintiff that he was expected to use the permanent ladder rather than scaffolding. Doto v. Astoria Energy II, LLC, 129 AD3d 660; 

Second Dept. 2023. Not Recalcitrant Worker And No Evidence Plaintiff Sole Cause of Accident. No evidence plaintiff was instructed to use a different ladder. Plaintiff fell from unsecured ladder. No evidence chose to use an inadequate device when proper devices were available and no evidence plaintiff misused an otherwise adequate safety device. Lochan v. H&H Sons Home Improvement, Inc., 216 AD3d 630;

Third Dept.

Third Dept. 2023. Not Recalcitrant Worker. Safety Device Not at Worksite. Coworker’s testimony that existence of rope was somewhere in the warehouse insufficient to establish the rope was available, visible and in place at the worksite. Barnhardt v. Rosetti, LLC, 216 AD3d 1295;

Third Dept. 2004. Failing to Follow Co-Worker’s Advice Not to Use Ladder Because of Ice. Not Recalcitrant Worker. Coworker testified sidewalk was sheet of ice & warned plaintiff not to use ladder in such icy conditions. No scaffolding, lift platforms, ropes, harnesses or other safety devices available at site. Plaintiff used only safety device available, a ladder. Merely failing to follow coworker’s advice not result in plaintiff being recalcitrant worker. Morin v. Machnick Builders, Ltd., 4 AD3d 668;

Fourth Dept.

Not Instructed to Use a Ladder

Fourth Dept. 2010. Not Recalcitrant Worker. Although defendants contend plaintiff should have used ladder as safety device, defendant presented no evidence plaintiff instructed to use ladder or that plaintiff knew or should have known that he should have used ladder based on his training, prior practice & common sense. As such, defendant submitted no evidence plaintiff had adequate safety devices available, that plaintiff knew such devices available & was expected to use them, that he chose for no good reason not to do so, & had he not made that choice he would not have been injured. Lorenti v. Stickl Constr. Co., Inc., 78 AD3d 1598;

Fourth Dept. 2009. Not Recalcitrant Worker. Plaintiff fell while carrying bricks up ladder at construction site. Absence of safety device was proximate cause of accident. Defendant contended plaintiff should have used outrigger system to raise the bricks to the level where masons were working, rather than carry by hand climbing a ladder. No evidence outrigger system was installed on scaffold on accident date. Defendant failed to raise issue of fact that whether plaintiff, based on his training, prior practice and common sense knew or should have known not to carry bricks by hand up the ladder. Defendant failed to offer evidence permitting a jury to find plaintiff had adequate safety device available; he knew both that it was available and expected to use it. That he chose for no good reason not to do so; and had he not made that choice accident not have occurred. Smith v. Picone Constr. Corp., 63 AD3d 1716;  

Fourth Dept. 2006. Issue of Fact. Told Not to Use The Ladder. Plaintiff fell from a ladder while cleaning newly constructed house. The ladder slid out from underneath her. 30 minutes before the accident, plaintiff’s employer told plaintiff not to climb the ladder as it was positioned and employer repeatedly told plaintiff not to use the ladder without someone to steady the ladder. Employer and another member of employer’s crew were present and able to steady the ladder and the ladder was not defective. Issue of fact whether plaintiff was recalcitrant worker. Andrews v. Ryan Homes, Inc., 27 AD3d 1197;

Plaintiff Required to Use Alternative Means Fourth Dept. 2007. Not Recalcitrant Worker.240(1) Liability Imposed. Ladder Removed. Plaintiff Used Alternative Means. While working as steel erector on iron beam 12 above ground, ladder plaintiff used to ascend onto a beam not in place when he was ready to descend. Plaintiff then attempted to slide down a vertical support column but as he approached column his foot skipped causing a fall to ground. Plaintiff established 240(1) violated as plaintiff injured by fall from elevated work site & absence of safety device proximate cause of accident. Here, ladder made available to plaintiff to ascend from the beam was removed, leaving plaintiff no choice but to attempt alternate method of descending from beam. Zender v. Madison-Oneida County BOCES, 46 AD3d 1361; 

October 29. Bimalleolar & Trimalleolar Fractures With Surgery. Appellate Awards For Past & Future Pain & Suffering.

First Dept. 2022. Deguilme v. NYC Tran. Auth., 209 AD3d 485;

Trial Court. Supreme Court, NY County.

Struck by bus.

Bimalleolar fracture requiring open reduction & internal fixation surgery. Second surgery to remove the hardware. Multiple hand fractures & lacerations.

Jury Verdict. $740,000 for past pain & suffering. $315,000 for future pain & suffering.

Appellate Court affirmed jury award.

First Dept. 2020. Thomas v. NYCHA, 180 AD3d 484;

Trial Court. Supreme Couty, Bronx County.

Bimalleolar ankle fracture with 2 surgeries. Second surgery was removal of hardware.

Jury Award. $70,000 for past pain & suffering. $0 for future pain & suffering.

Appellate Court increased award for past pain & suffering to $275,000. Increased award for future pain & suffering to $100,000.

First Dept. 2014. Harrison v. NYC Trans. Auth., 113 AD3d 472;

Trial Court. Supreme Court, Bronx County.

22 year old. Slip and fall from ice.

Comminuted bimalleolar fracture to left ankle resulting in 2 surgeries.

Jury Award. $200,000 for past pain & suffering. $300,000 for future pain & suffering.

Appellate Court affirmed jury award. 

First Dept. 2011. Alicea v. City of NY, 85 AD3d 585;

Trial Court. Supreme Court, Bronx County.

Fell on patch of ice.

33 year old sustained bimalleolar ankle fracture. 3 surgeries, including one open insertion to repair broken bones & second surgery to remove hardware.

Jury Award. $158,960 for past pain & suffering & $782,800 for future pain & suffering.

Appellate Court affirmed future pain & suffering award & increased award for past & suffering to $400,000.

First Dept. 2008. Lowenstein v. Normandy Group, LLC, 51 AD3d 517.

Trial Court. Supreme Court, NY County.

Fall through open sidewalk door into a cellar while exiting a restaurant.

Either a bi or tri-malleolar ankle fracture. Open reduction & internal fixation; 3 part should fracture treated with immobilization. 12 day hospital stay.

Jury Award. $300,000 for past pain & suffering. $1.5 million for future pain & suffering.

Appellate Court reduced future pain & suffering award to $850,000.

Second Dept.

Second Dept. 2017. Sawh v. Bally Contr. Corp., 148 AD3d 852;

Trial Court. Supreme Court, Queens County.

12 year old sustained bimalleolar right ankle fracture consisting of fractures of right fibula & right tibial, damaging the growth plate. 3 surgeries including implantation & later removal of screws.

Jury Award. $100,000 for past pain & suffering.

Appellate Court increased jury award to $300,000.

Second Dept. 2012. Williams v. NYC Tr. Auth., 95 AD3d 1003;

Trial Court. Supreme Court, Kings County.

51 years old. Tripping on steps at subway station.

Bimalleolar fracture of right ankle requiring open reduction and internal fixation surgery in which 11 screws were inserted into the lateral and remedial sides of the ankle.

Jury Award. $600,000 for past pain & suffering. $1 million for future pain & suffering.

Appellate Court reduced award for past pain & suffering to $200,000. Reduced future pain & suffering to $400,000.

Second Dept. 2007. Ruiz v. Hart Elm Corp., 44 AD3d 842;

Trial Court. Supreme Court, Kings County.

Frip and fall down stairs.

22 year old. Bimalleolar ankle fracture requiring 3 surgeries.

Jury Award. $500,000 for past pain & suffering. $400,000 for future pain & suffering.

Appellate Court affirmed jury award.  

Second Dept. 2000. Benain v. NYC Tran. Auth., 277 AD2d 267;

Trial Court. Supreme Court, Kings County.

Trip and fall on damaged step in subway station.

Bimalleolar fracture of left ankle.

Jury Award. $300,000 for past pain & suffering. $500,000 for future pain & suffering.

Appellate Court reduced award for past pain & suffering to $200,000. Reduced award for future pain & suffering to $100,000. 

Second Dept. Trial Court. 2009. Kelner v. Kaliber Fin., Inc., 2009 NY Slip Op 32119(U);

Fell down 14 steps.

Bimalleolar fracture of right ankle requiring open reduction & internal fixation with plate & screws.

Trial Court. Awarded $350,000 for past pain & suffering. $500,000 for future pain & suffering.   

Trimalleolar Fracture With Surgery

First Dept.

First Dept. 2019. Kromah v. 2265 Davidson Realty LLC, 169 AD3d 539;

Trial Court. Supreme Court, Bronx County.

Trimalleolar ankle fracture with 2 surgeries; developed traumatic arthritis & reflex sympathetic dystrophy.

Jury Award. $1.6 million for past pain & suffering. $4.5 million for future pain & suffering.

Appellate Court affirmed jury award.

First Dept. 2012. Rivera v. NYC Tr. Auth., 92 AD3d 516;

Trial Court. Supreme Court, NY County.

Trimalleolar ankle fracture, with dislocation. 3 surgeries.

Jury Award. $710,000 for past pain & suffering. $1 million for future pain & suffering over 40 years.

Appellate Court reduced past pain & suffering to $600,000 & future pain & suffering to $600,000.

First Dept. 2011. Hopkins v. NYC Tr. Auth., 82 AD3d 446;

Trial Court. Supreme Court, NY County.

22 years old. Trip and fall in subway station on raised concrete.

Trimalleolar fracture of right ankle. Open reduction & internal fixation with metal plate & screws. Second surgery to remove hardware.

Jury Award. $350,000 for past pain & suffering. $275,000 for future pain & suffering over 55.4 years.

Appellate Court affirmed jury award.

First Dept. 2005.Uriondo v. Timberline Camplands, Inc., 19 AD3d 282;

Trial Court. Supreme Court, Bronx County.

Comminuted trimalleolar fracture of left ankle requiring surgery.

Jury Award. $25,000 for past pain & suffering. $290,000 for future pain & suffering over 28 years.

Appellate Court affirmed jury award.

First Dept. 2004. Grant v. City of NY, 2004 NY Slip Op 00977;

Trial Court. Supreme Court, Bronx County.

53 years old. Slip & fall on ice in crosswalk.

Trimalleolar fracture & dislocation of right ankle. 2 surgeries.   

Jury Award. $5000 for past pain & suffering. $10,000 future pain & suffering.

Appellate Court. Increased award for past pain & suffering to $100,000. Increased award for future pain & suffering to $150,000.

Second Dept.

Second Sept. 2014. Hammer v. 1111 Ave. K, Inc., 115 AD3d 803,

Trial Court. Supreme Court, Kings County.

25 years old. Dislocated trimalleolar fracture of right ankle, open reduction & internal fixation. Plate & 8 screws to hold medial malleolus in place.

Trial Court Judge increased past pain and suffering jury award of $130,000 to $200,000 & raised jury award of future pain & suffering $140,000 to $300,000.

Appellate Court affirmed trial court holding.

Second Dept. 2009. Fishbane v. Chelsea Hall, LLC, 65 AD3d 1079;

Trial Court. Supreme Court, Kings County.

Slip & fall on building steps.

Trimalleolar ankle fracture.

Jury Verdict. $500,000 for past pain & suffering. $300,000 for future pain & suffering.

Appellate Court. Reduced award for past pain & suffering to $350,000. Reduced future pain & suffering to $200,000.   

Second Dept. 2005. Clark v. N-H Farms, Inc., 15 AD3d 605;

Trial Court. Supreme Court, Orange County

Trip and fall.

Trimalleolar ankle fracture requiring surgery.

Jury Award. $500,000 for past pain & suffering. $700,000 for future pain & suffering. Appellate Court reduced award for past pain & suffering to $200,000. Reduced award for future pain & suffering to $225,000.

October 28. Indemnification Of Owner/GC. Subcontractor Negligent or Accident Resulted From Performance of Subcontractor’s Work.

A premises owner (owner) and general contractor (GC) seek indemnification from a subcontractor where the subcontractor’s worker suffers an accident.  If the subcontractor denies an obligation to indemnify, owner/GC commence a third-party action against the subcontractor seeking indemnification based upon the language of the contract’s indemnification clause.

Language of the indemnification clause usually limits indemnification to two scenarios. Where a subcontractor’s negligence caused the worker’s accident or, the more broader indemnification obligation of the worker’s accident merely arising from performance of the subcontractor’s work.

Where an owner and GC must establish the subcontractor was negligent and such negligence caused the accident, such a finding of negligence may be made by a judge in a summary judgment motion or from a jury.  Owner/GC, in establishing the subcontractor was negligent,  must also establish on a summary judgment motion that it was not negligent and therefore the Labor Law  §200 claim is dismissed. If the §200 claim is not dismissed, owner/GC not entitled to indemnification. 

If the indemnification clause language allows the owner/GC to be indemnified for its own negligence, such clause is void and unenforceable, according to New York’s General Obligations Law §5-322.1.

A covenant, promise, agreement or understanding in, or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair or maintenance of a building, structure, appurtenances and appliances including moving, demolition and excavating connected therewith, purporting to indemnify or hold harmless the promisee against liability for damage arising out of bodily injury to persons or damage to property contributed to, caused by or resulting from the negligence of the promisee, its agents or employees, or indemnitee, whether such negligence be in whole or in part, is against public policy and is void and unenforceable …

If the indemnification clause contains the phrase that indemnification is subject “to the fullest extent of the law,” courts deem such language to be that the owner/GC cannot be indemnified for its own negligence and thus the clause can be enforced against a subcontractor. Most indemnification clauses contain such phrase.          

Indemnification clause may also state the indemnity obligation is triggered where worker’s accident arises out of the performance of the subcontractor’s work.  Under this standard, the owner/GC do not have to establish the subcontractor was negligent.  Rather, as long as the accident arose from the subcontractor’s scope of work under the contract with the GC, and owner/GC have the §200 claim dismissed by the court, the subcontractor’s indemnity obligation is triggered. 

As the “performance of the work” indemnity standard does not require owner/GC establishing the subcontractor’s negligence, it is a standard less onerous for owners/GCs to obtain indemnification. If plaintiff testifies at a deposition that the accident occurred during the work of the subcontractor, the subcontractor is obligated to indemnify the owner/GC under the performance of the work standard.  In assessing an entity’s indemnity obligation, start with whether the standard is negligence or performance of the work.

As to “scope of work,” if the subcontractor’s worker made a unilateral decision, unknown to the subcontractor, the subcontractor, as to performing work to an area of the site that was beyond the subcontractor’s work, the subcontractor’s indemnification obligation may not be triggered.

PARTIAL INDEMNIFICATION.  Exception to GOL §5-322.1 That Entity at Fault For Accident Cannot Obtain Indemnification.

When a GC is partially liable for a construction accident, GC may seek partial indemnification from another entity that is also at fault where the indemnification language provides for partial indemnity. As such, indemnification may be available to a GC that is only partially at fault for an accident. Indemnification is limited to the GC’s own negligence. Court of Appeals, in Brooks v. Judlau held a GC could seek partial indemnification from plaintiff’s employer.

2008. Action brought by ironworker against GC. Plaintiff, in course of work, grabbed onto safety cable installed by GC. Upon doing so, cable became loose causing plaintiff to fall 18 feet. GC asserted that also at fault was plaintiff’s employer because of its control of workplace & failing to provide its employee with requisite safety equipment to prevent his fall. To hold today that a partially negligent GC may never seek contractual indemnification for wrongful acts attributable to its subcontractor would leave GC liable for negligent actions of its subcontractor. Such outcome would be contrary to intent of GOL Section 5.322.1 that payment of damages be made according to fault. The language “to the fullest extent permitted by law” contemplates partial indemnification & is intended to limit contractual indemnity obligation solely to party’s own negligence. The holding that the phrase “to the fullest extent permitted by law” limits rather than expands promisor’s indemnity obligation is supported by other courts holding such phrase creates partial indemnification obligation on behalf of subcontractor promisor. No language in GOL 5-322.1 preventing partial indemnification provisions where both GC & its subcontractor are joint tortfeasors. Brooks v. Judlau Contr. Inc., 11 NY3d 204;

October 25. Can There be 240(1) Liability For Falling Object at Construction Site Where Object Only Fell a Minimal Distance Before Striking Worker? Yes. “Force of Gravity” Analysis.

While 240(1) requires to workers’ falls from elevated heights, the same elevated height requirement not required for falling objects.240(1) liability may encompass objects not falling from elevated heights where such objects fell a short distance but generated a significant “force of gravity” upon striking plaintiff to warrant protections of the safety devices enumerated in 240(1).  What was the weight of the falling object? The heavier the object, the less distance it has to fall for 240(1) liability.  Courts often conclude that where the weight of the falling object was significant, the distance the object fell was not “de minimis.”  

240(1)’s  expansion to “force of gravity” analysis started with the Court of Appeals’ 2009 decision, Runner v. NY Stock Exch., Inc., 13 NY3d 599. In determining whether there was 240(1) liability, the distance  an object fell along with the weight of the falling object and amount of force such weight generated over such distance upon striking a worker. Plaintiffs can cite  the nature of the injuries sustained in support of the force of a falling object. 

In 2011, Court of Appeals applied a “force of gravity” to objects not just falling vertically but merely falling over.  Wilinski v. 334 E. 92^nd Housing Dev. Fund Corp., 18 NY3d 1, held there was  240(1) liability where an object merely falling over from an upright position generated a sufficient force of gravity. With Wilinski, there can be 240(1) liability where the falling object is at the same level as plaintiff.

First Dept. 2024. Defendants’ Motion Denied. Plaintiff assisting with erection of large stone structure on terrace of a building. During such work, several of the stones, which weighed 3500 pounds each, had to removed & replaced. As a hoist exerted pressure on a stone, the stone broke, swung to the side, pinning plaintiff’s hand against a wall. Evidence failed to show whether the stone moved laterally or in a pendulum like fashion. If it was the latter, it would implicate the force of gravity. Evidence raised inference that the provided safety device proved inadequate to shield worker from harm directly flowing from application of force of gravity to object or person. Rivera v. 95^th & Third LLC, 2024 NY Slip Op 03018; 

Second Dept. 2023. Issue of Fact. Whether glass panels required securing. Plaintiff tasked with delivering glass panels, 8 feet by 5.5 feet long, one quarter inch thick, with each panel weighing 60 pounds. Plaintiff loaded glass panels 2-4 panels at a time onto A-frame cart by leaning panels against the frame. Glass panels were not secured to the cart. At some point, A-frame cart became caught on something, causing cart to stop & glass panels to fall. Falling panels struck plaintiff in the head. Evidence glass panels fell from a height as to hit plaintiff on the head & with such force as to knock plaintiff to the ground & render him briefly unconscious. Evidence the employees typically utilized belts to secure glass panels during transport. However, employees were unable to do so in this instance as not provided belts large enough to secure glass panels being moved. As such, issues of fact whether a belt securing glass panels would have been necessary or expected, & whether accident caused by absence of such belts. Laliashvili v. Kadmia Tenth Ave., SPE, LLC., 221 AD3d 988;

Third Dept. 2022. Issue of Fact. Plaintiff struck by falling barn doors while delivering sheetrock. Defendant provided no evidence of amount of force generated by falling doors. Plaintiff struck by a falling barn door that was not hinged. In determining whether elevation differential is physically significant or de minimis, consider not only height differential itself, but also weight of falling object & amount of force it was capable of generating, even over the course of a relatively short descent. Insufficient evidence whether accident arose from physically significant elevation differential, as no indication of plaintiff’s height; weight of barn doors; how far doors fell & amount of force doors generated when falling. As insufficient evidence offered, defendants’ summary judgment motion denied. Hawver v. Steele, 204 AD3d 1125;

Fourth Dept. 2024. 240(1) Not Dismissed. Plaintiff & supervisor moving stack of drywall panels leaning against a wall & partially obstructing doorway of room plaintiff needed to access to perform HVAC work. Panels fell, striking plaintiff. Although the drywall that fell on plaintiff was located on floor & was not being hoisted or secured, issues of fact existed whether 240(1) applied. Jesmain v. Time Cap. Dev. Corp., 225 AD3d 1189;

The most recent decision addressing “falling object” liability under 240(1) was in Maculay v. New Line Structures & Dev. LLC, 2024 NY Slip Op 05284, issued by the First Dept. on October 22.  There, plaintiff was struck by a falling object at a work site.  The object was caused to fall by the work of plaintiff and coworkers. Plaintiff was struck on the head when an unsecured heavy metal panel being removed by plaintiff and coworkers from a louver broke free and fell. Such panel was about 4 feet wide and 8 feet in height. It weighed between 150 and 200 pounds. That plaintiff or coworkers were removing or prying lose the panel when it fell did not mean it was not a gravity related accident.  It was held 240(1) was violated. 

With a falling object analysis, during discovery obtain the weight of the falling object, along with approximation of how far it fell before striking plaintiff.  

October 24. 240(1) Limited to Buildings & Structures. Is a Truck a “Structure” Under 240(1)? Falls From Elevated Heights of Trucks.

First Dept.’s October 22, 2024 decision, Rodriguez v. Riverside Ctr. Site 5 Owner LLC, 2024 NY Slip Op 05192, addressed 240(1) in the context of plaintiff falling off a platform of a cement truck at a construction site. Plaintiff, the truck operator, had just delivered cement to the site and was cleaning a chute of the truck while still at the site.  To clean the chute, plaintiff climbed onto a platform of the truck, which had a railing.  The platform was 10 feet above the ground.  As plaintiff was leaning on the railing, it gave way, with plaintiff falling to the ground.    

The appellate court affirmed the trial court decision that plaintiff was engaged in “alteration” work, which is one of the enumerated activities under 240(1).  Certainly, plaintiff’s fall of 10 feet was a fall from an elevated height.  Summary judgment was granted to plaintiff.

An issue apparently not litigated in the case was whether the cement truck was a “structure” under 240(1).  240(1) states, in part, “erection, demolition, repairs, altering, painting, cleaning or pointing of a building or structure.”  As such, the plain language of 240(1) requires an accident to occur at a building or structure to be within the protection of 240(1). In Rodriguez, was the accident location, i.e., the platform of a cement truck, a “structure” for purposes of 240(1).

McCoy v. Kirsch, 99 AD3d 13 (2^nd Dept. 2012), noted, “the word structure in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner.”  A cement truck is “composed of parts joined together in some definite manner.”  The term “structure” is defined by Black’s Law Dictionary as,

1, framework or construction with identifiable elements that give stability and form, able to resist strains and stresses.

2. Something built on a parcel of real estate which can be small (such as a shed) or large (such as a ten-story building).

Judicial decisions below define a “structure” as something built or placed on a parcel of land. An electric sign extending across a building façade; a water tank on a building; telephone/utility pole; manhole; truss system; power screen used at gravel pit; a filter room at cement plant; hot water heater; and warehouses shelves.  What all these objects have in common is they are located in a fixed position inside a premises or outside a premises.  Such objects do not move from place to place.  Rather, they are stationary. 

A cement truck is not a stationary object.  It is not constructed on a piece of land.  It is mobile equipment.  As the truck itself is not a “structure,” no part of the cement truck can be a structure, such as a platform on the truck. 

While the plaintiff in Rodriguez suffered a fall from an elevated height, such fall was not from a “structure.” As no fall from a requisite “structure,” 240(1) not applicable.

In a 1996 First Dept. decision, Gentile v. NYCHA, 228 AD2d 296, the driver of a truck used to haul away construction debris, fell 10 feet to the ground when losing his balance pulling a tarpaulin from a stationary roller over the truck’s contents. 240(1) was dismissed as plaintiff not engaged in enumerated work of 240(1) to a building or structure.

Second Dept. 2001 decision, Hughes v. County of Nassau, 286 AD2d 476, involved plaintiff’s fall from a truck’s makeshift ladder. “The defendants are entitled to the dismissal of the Labor Law §240(1) claim, since the plaintiff was not injured while working on a building or structure, and his action in getting off the truck did not pose an elevation-related risk.”   

The Fourth Dept., in a 2013 decision, Bish v. Odell Farms Partnership, 119 AD3d 1337, arising out of plaintiff slipping on a ladder permanently affixed to his cement truck after washing out the truck. In dismissing the 240(1) cause of action, it was held such activity did not involve “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure within the intended meaning of Labor Law 240(1).”    

However, Third Dept. in a 1999 decision, Hutchins v. Finch, Pruyn Company, Inc., 267 A.D.2d 809, arose out of a fall from a “log truck.” Plaintiff was in the process of cleaning the bed of the truck when he fell off the trailer.  The decision noted. “… the definition of “structure” is sufficiently broad to encompass the log truck herein.”

3 out of 4 judicial departments hold a truck is not a “structure,” thereby dismissing the 240(1) cause of action. 

Court of Appeals

Court of Appeals. 1987. 240(1) Not Dismissed. Electric sign extending across the façade of the premises at a height of 15 feet & was affixed so as to be held flat against the building wall, was part of the building for purposes of 240(1). Decedent was attempting to repair the sign. Izrailev v. Ficarra Furniture of Long Island, Inc., 70 NY2d 813;

“Structure” Under 240(1)

Water tank on building.

Telephone pole.

Truss system.

Warehouse Shelves.

Manhole.

Filter room at cement plant.

Chupah.

Hot water heater.

Power Screen used at gravel pit.

Utility pole.

Not a “Structure” Under 240(1).

Scenery panels to amusement ride.

Debris.

Tree.

First Dept.

First Dept. 2002. Water tank on building roof part of building was a structure. 240(1) Liability Applied. Plaintiff from a ladder attached to building’s roof-top water tank.  Caraciolo v. 800 Second Avenue Condominium, 294 A.D.2d 200;

First Dept. 2021. Telephone Pole is “Structure” within 240(1). Villalta v. Consolidated Edison Co. of NY, 197 AD3d 1078;  

First Dept. 2017. Plaintiff engaged in setting up truss system, which was a “structure” under 240(1). When plaintiff fell, plaintiff was helping set up the second tier truss system of a sponsorship booth. The truss system constituted a structure because viewed as a whole it extended the height of the booth from 10 feet to 16 feet, was comprised of several interlocking parts that were connected in specific way, and required use of forklift and several people to construct.  Although this truss system was being set up to allow for the display of branding, it was not a decorative modification as the work entailed far more than mere change to the outward performance of the booth and instead constituted an alteration to a pre-existing structure. Perez v. Beach Concerts, Inc., 154 AD3d 602; 

Truss. A framework, typically consisting of rafters, posts and struts, supporting a roof, bridge or other structure.

First Dept.  2015. Warehouse shelves “structure” under 240(1). 240(1) Liability Imposed. Plaintiff fell from unsecured ladder while working in a warehouse and such work included removal of heavy machinery and shelves that ran floor to ceiling across 3 second floor walls, each 50 feet long and 8 feet high and bolted to the floors and walls.  Removed shelving was loaded into cages, which were then lifted by pallet jack, moved to the edge of the second floor and lowered to first floor by forklift.  The dismantling of the shelves was sufficiently complex and difficult task to render the shelving a “structure” within 240(1).   Also, such work constituted “demolition” for 240(1) and 241(6). Phillips v. Powercrat Corp., 126 AD3d 590:

First Dept. 2013. Manhole a “Structure.” Dos Santos v. Consolidated Edison of NY, Inc., 104 AD3d 606;

First Dept. 2010. Filter Room a Structure. Plaintiff, while transporting dust filters from cement plant’s rooftop structure to ground level garage where filters were to be cleaned, fell to lower level roof. In removing 6 foot long filters from elevated structure and transporting them to ground level, plaintiff engaging in activity that encompassed an ever present elevation-risk that the safety devices enumerated in 240(1) were designed to protect against. Also, “filter room” was clearly a “structure” for purposes of 240(1). As no safety devices provided to plaintiff, 240(1) imposed. Parraguirre v. 27^th St. Holding, LLC, 71 AD3d 594;

Second Dept.

Second Dept. 2014.  Warehouse Shelves are a “Structure.” Plaintiff fell 12 fell from one of shelves he was dismantling at warehouse.  Shelving was being dismantled & reassembled in different portion of warehouse, was free-standing, some of which required use of a hammer to separate the pieces. Shelves constituted a “structure” under 240(1) as they were composed of component pieces (metal grates and cross bars) attached in a definite manner. Kharie v. South Shore Record Mgt., Inc., 118 AD3d 955;

Second Dept. 2012. Chupah is “Structure.”  The Court of Appeals in Caddy v. Interborough RT Co., 195 NY 415 (1909), held the word “structure” in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner. Plaintiff was disassembling a chupah, which was 10 foot high device made of pipe, wood and a fabric canopy at its top. Plaintiff was working on a ladder and the ladder skipped, causing a fall. A ladder plus various hand tools were required to assemble and disassemble chupah’s parts in a process that would take an experienced worker more than a few minutes to complete. Chupah is more akin to things and devices which courts have recognized as structures.  McCoy v. Abigail Kirsch at Tappan Hill, 99 AD3d 13:

Chupah. Canopy under which the bride and grom stand during a Jewish wedding ceremony.

Third Dept.

Third Dept. 2021. Hot Water Heater a “Structure.”  A “structure” includes “constructs” distinct from the building itself. The hot water heater was situated above one of the store’s refrigerated units. The heater did not rest directly on top of the freezer, but on platform suspended a few inches above the freezer by cables attached to the ceiling. The heater had a gas turnoff adjacent to it and an electric breaker switch on the actual heater. A shelf ran along top of freezer unit that protrudes out about 3 feet from the freezer, 12 feet above the floor surface. To access the heater, it was necessary to place a ladder against the shelf, and step over the shelf to reach the heater platform. In the Court’s view, this configuration constituted a structure within 240(1). Eherts v. Shoprite Supermarkets, Inc., 199 A.D.3d 1270;

Third Dept. 2012. Utility pole with its attached hardware, cable & support systems constitutes a structure within the meaning of Section 200. Gunderman v. Sure Connect Cable Installation, Inc., 101 AD3d 1214;

Third Dept. 2005. “Power Screen” a “Structure” under 240(1). Plaintiff’s employer leased a site for the purpose of developing it as a gravel pit. Plaintiff’s employer brough a power screen to the site. Power screen is used to screen gravel or make sand, operates by taking material dumped from pay loader into a hopper end, sending it up a conveyor belt onto power screen, then shaking & vibrating the material to separate different sizes of stone. Upon arrival of a chute that was to be attached to conveyor end of power screen, plaintiff attempted to attach the chute by himself. He did this by raising the chute in a front-end loader and trying to attach its 2 connectors to the power screen. While standing with one foot in the loader’s bucket & one foot on the chute, 15 feet in the air, plaintiff fell. Court of Appeals has held the word “structure” in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner.  Under such broad definition, the power screen qualifies as a “structure” under 240(1). Hodges v. Boland’s Excavating & Topsoil, Inc., 24 AD3d 1089;

Not a “Structure” Under 240(1)

Comment. Items below were held not to be constitute a structure. 240(1) dismissed.

First Dept.

First Dept. 2011. Scenery Panels to Amusement Ride Not a “Structure” Under 240(1). Employee of traveling carnival was injured while preparing amusement ride for use. Plaintiff was installing scenery panels as a backdrop to the ride, which came prebuilt. Plaintiff not engaged in erection of a structure under 240(1). Allen v. City of NY, 89 AD3d 406; 

Second Dept.

Second Dept. 2017. Debris Not a “Structure” Under 240(1). Plaintiff hired to serve as maintenance worker at the camp. Plaintiff injured cutting & clearing a downed tree at the camp. The mound of old tennis court clay, sand, rocks and other construction debris was not a “structure” under 240(1).  Derosas v. Rosmarin Land Holdings, LLC, 148 AD3d 988;

Second Dept. 2009. Tree Cutting. Tree Not a “Structure” Under 240(1). While standing 10 feet above the ground, cutting down a tree on defendant’s property, plaintiff struck by a tree limb. Such tree removal work not within 240(1) protection as a tree is neither a building nor structure. Also, plaintiff was performing routine maintenance outside of a construction or renovation context. Morales v. Westchester Stone Co., Inc., 63 AD3d 805;   

Third Dept. Third Dept. 2015. Tree Not a Building or Structure.  240(1) Dismissed. Plaintiff’s supervisor, engaged in tree cutting work, caused section of tree trunk to strike plaintiff who was walking underneath where supervisor was working.  Section 240(1) dismissed as tree is neither a building or structure and neither tree removal nor tree cutting is an enumerated activity of 240(1).  Cicchetti v. Tower Windsor Terrace, LLC, 128 AD3d 1262; 

October 23. Can Plaintiff Really Allege New Industrial Codes For The First Time When Opposing a Summary Judgment Motion? Yes.

Plaintiff files the note of issue, representing that all discovery is completed.  The parties then have 60 or 120 days to file summary judgment motions.  Defendant moves to dismiss Labor Law 241(6) cause of action because the alleged Industrial Codes are not factually applicable.  Industrial Codes must be factually applicable and not a general safety code to support a 241(6) cause of action.  If the alleged Industrial Codes are factually inapplicable to the cause of the accident or are a general safety code, the 241(6) action is dismissed.

In opposition to defendant’s motion, plaintiff cites Industrial Codes that were not previously alleged in the Complaint or Verified Bill of Particulars.  Defendant, in a reply affirmation, asserts such Industrial Codes cannot be considered by the Court as such Industrial Codes were alleged for the first time post-note of issue.    

Not so fast.  Courts allow such belated Industrial Codes upon a showing of 3 things, even when alleged for the first time in opposing defendant’s summary judgment motion, where there is a showing of merit as to applicability of the Industrial Code; there are no new factual allegations; and there is no prejudice to defendant.

Defendant, asserts in a reply affirmation, “Of course there was prejudice.  If I had known about such statutes, I would have questioned plaintiff as to such statutes at plaintiff’s deposition. Plaintiff deliberately hid such Industrial Codes so plaintiff would not be questioned at the deposition.” An equitable argument, but not a winning argument.

The argument to make is that the newly alleged Industrial Codes are not related to the existing claims.  Such new claims are a new theory of liability. Example of newly alleged Industrial Code not asserting a new liability theory was in Ortega v. Everest Realty LLC, 84 AD3d 542 (1^st Dept. 2011):

Plaintiff first alleged 23-3.3(c) in opposition to defendant’s summary judgment motion. No prejudice because the theory that accident would not have occurred had the shed been properly inspected and shored was consistent with plaintiff’s testimony & allegations in the bill of particulars. Ortega v. Everest Realty LLC, 84 AD3d 542;          

Defense counsel, in moving for summary judgment, is not going to move to dismiss Industrial Codes that are not alleged.  However, where new Industrial Codes are allowed to be alleged in opposing a summary judgment motion, counsel must be aware of Industrial Codes that may be cited in an affidavit of plaintiff’s expert witness, as part of an opposition affirmation.  It requires defense counsel to go beyond the usual reactive mode to becoming proactive in preparing a reply affirmation.  As an example, If a trench collapses upon a worker because of inadequate shoring, anticipate that in response to a summary judgment motion, Industrial Code, §23-4.2(a), entitled, “Trenches and area type excavations” may be alleged.  Know which Industrial Codes may apply, even if not alleged in a Complaint of bill of particulars and anticipate such codes surfacing in opposition affirmations.

Below are appellate court decisions where the issue of alleging new Industrial Codes post-note of issue was addressed.

First Dept.

Improper For Court to Dismiss 241(6) Claim Merely Because Industrial Codes Not Alleged in Initial Pleadings.

First Dept. 2000. Noetzell v. Park Avenue Hall Housing, 271 AD2d 231;   

Second Dept.

Second Dept. 2024. Plaintiff moved to amend bill of particulars to alleged 23-3.3(e). Plaintiff made a showing of merit, the amendment presented no new factual allegations or new theories of liability & amendment not prejudice defendants. Defendants were put on sufficient notice through the complaint, bill of particulars & plaintiff’s deposition testimony that 241(6) cause of action related to defendants’ alleged failure to provide proper safety devices, such as chute or hoist, to be used in removal of demolition debris from the building during demolition operations. Verdi v. SP Irving Owner, LLC, 227 AD3d 932;   

Second Dept. 2021. In response to defendant’s motion for summary judgment, plaintiff cross-moved for leave to amend bill of particulars to add 12 NYCRR 23-1.5(c)(3). Leave to amend the pleadings to identify a specific, applicable Industrial Code provision may properly be granted, even after note of issue was filed, where plaintiff makes a showing off merit, and the amendment involves no new factual obligations, raises no new theories of liability and causes no prejudice to defendant. Palaguachi v. Idlewood 228^th St. LLC, 197 AD3d 1321;

Second Dept. 2017. Tuapante v. LG-39, LLC, 151 AD3d 999;

Second Dept. 2015.  Doto v. Astoria Energy I, LLC, 129 AD3d 660;

Fourth Dept.

Fourth Dept. 2022.  Lower court properly granted plaintiff’s application seeking leave to amend the pleadings to include 241(6) claim premised on alleged violation of 12 NYCRR 23-1.7(b)(1), which concerns hazardous openings.  Plaintiff may be entitled to leave the pleadings or bill of particulars where there is a showing of merit, raises no new factual allegations or legal theories & causes defendant no prejudice.  Tanksley v. LCO Bldg. LLC, 201 AD3d 1323; 

If No Prejudice Sustained by Defendant From Amendment to Bill of Particulars, Plaintiff Allowed to Amend to Add Industrial Code.

First Dept. 2004. In support of alleged violation of 23-1.7(e), counsel referred to prior affidavit of its engineering expert that described the provision but mistakenly identified it as 22 NYCRR 23-1.7(e). While Metro North & Crow complain these submissions were addressed to diDomenico alone, they were served with the cross motion, at which time they had yet to serve their cross motion. The underlying facts as to the accident were the same for all defendants.  As such Metro North & Crow should not have been surprised when plaintiff attempted to assert the foregoing violations. Walker v. Metro-North Commuter RR, 11 AD3d 39;

First Dept. 2018. Although plaintiff did not provide an excuse for his delay in seeking leave to amend the bill of particulars, the delay was relatively short, and defendants demonstrated no prejudice. The allegation that section BC 3314.10.1 was violated is consistent with plaintiff’s original theory that the scaffold, as installed, was deficient and inadequate. That section mandated that suspended scaffolds be erected and operated in such a manner that … suspension elements are vertical and a in a plane parallel to the wall at all times. Also, there was evidence in the record to support new allegation. Galvez v. Columbus 95^th St. LLC, 161 AD3d 530; 

First Dept. 2011.Plaintiff first alleged 23-3.3(c) in opposition to defendant’s summary judgment motion. No prejudice because the theory that accident would not have occurred had the shed been properly inspected and shored was consistent with plaintiff’s testimony & allegations in the bill of particulars. Ortega v. Everest Realty LLC, 84 AD3d 542; 

First Dept. 1998. Allowed to Amend Bill of Particulars. 23-1.13(b)(4) requires that workers who may come into contact with an electric power circuit be protected against electric shock by de-energizing the circuit & grounding it or by guarding such circuit by effective insulation. No new facts beyond alleged in Complaint & Bill of Particulars or asked at plaintiff’s deposition. Snowden v. NYCTA, 248 AD3d 235;     

Leave to Amend Bill of Particulars May be Granted Even After Note of Issue Filed Where No Prejudice to Defendant.

Second Dept. 2017. Tuapante v. LG-39, LLC, 151 AD3d

Fourth Dept. 2006. Ellis v. JMG Custom, 31 AD3d 1220;

Court Not Dismiss Plaintiff’s Opposition to Motion Because Plaintiff Not Identify Specific Code Violations Until Opposition Papers Filed to Summary Judgment Motion.

First Dept. 2008. Zuluaga v. PPC Constr., LLC, 45 AD3d 479;  1998. Murtha v. Integral Construction Corp., 253 AD2d 637;

Second Dept. 2012. Sanders v. St. Vincent Hospital, 95 AD3d 1195;

Fourth Dept. 1996. White v. Farash Corp., 224 AD2d 978;

Motion To Amend Bill of Particulars to Assert Industrial Codes Denied. Post Note of Issue Filing.

First Dept.

First Dept. 2015.Plaintiff not allege 23-6.1(h) until he submitted a bill of particulars 6 months after note of issue filing & without leave of court. Terepka v. City of NY, 126 AD3d 643;

First Dept. 2012. Motion to amend Bill of Particulars to alleged violation of 23-9.4(h)(5) denied as such request made after the filing of the note of issue. Was untimely & prejudicial. Scott v. Westmore Fuel Co., 96 AD3d 520; 

First Dept. 2003. Plaintiff filed note of issue on May 23, 2000, with no Industrial Codes alleged. October 13, 2000, court issued stipulation between the parties that plaintiff had 20 days where amended bill of particulars could be filed. Plaintiff missed the deadline. 6 months after the stipulation date & about 1 year after note of issue filing & then only in response to defendant’s motion, plaintiff cross moved to amend. Court denied amendment. Reilly v. Newireen, 303 AD2d 214;  

First Dept. 2023.Plaintiff’s motion to amend bill of particulars denied as plaintiff failed to amend within time frame of court order.Connor v. AMA Consulting Engrs. PC, 213 AD3d 483;

Second Dept.

Second Dept. 2014. Plaintiff’s Motion to Amend Bill of Particulars Denied. Cause of Action Dismissed. As the lower court should have dismissed the 241(6) cause of action, plaintiff’s motion to amend the bill of particulars to allege violations of 12 NYCRR 23-4.2 & OSHA standards to 241(6) cause of action denied. Simon v. Granite Building 2, LLC, 114 AD3d 749;

Second Dept. 1999.Court denied amendment to bill of particulars where alleged Industrial Codes not provide basis For 241(6) liability. Ferreira v. Unico Service Corp., 262 AD2d 524

Third Dept.

Third Dept. 2010.Plaintiff’s motion to amend bill of particulars denied.Addition of 23-3.3 would prejudice defendant moving to dismiss action.McDonald v. Holding, 79 AD3d 1220;

October 22. Accident Occurred to Work Performed Outside Subcontractor’s Scope of Contract. Indemnification Denied to Premises Owners.

Comment. Indemnification is when an entity agrees to pay the costs of a settlement or jury award for another entity whose actions did not cause or contribute to the accident. In the context of construction law, a subcontractor agrees to indemnify a general contractor (GC) and premises owner for their passive liability, i.e., liability stemming merely from their status as GC and premises owner pursuant to Labor Law Sections 240(1) and 241(6) statutes. However, if a GC or premises owner cause or contribute to an accident, such entities are not entitled to indemnification pursuant to NY General Obligation Law 5-322.1

Where a subcontractor is contractually obligated to indemnify an owner or GC, a defense arises where the accident occurs outside the scope of the subcontractor’s contractual scope of work. Review the Scope of Work section of the contract to determine whether the worker’s accident arose from such work or outside such work. If the worker engages, without direction, in work beyond the contract or agreement’s Scope of Work, the below decisions hold the subcontractor has no indemnity obligation.  

However, note the not uncommon event at worksites of written modifications to the Scope of Work terms. Such modifications can enlarge the work to be performed and enlarge the indemnification obligation beyond the original Scope of work Terms. Must be established of a mutual departure from the written agreement & changes were requested by plaintiff & executed by defendant.

No Indemnification Obligation Where Accident Occurred Outside Scope of Work of HVAC Subcontractor.

October 16 decision. Trial Court. NY Supreme Court. Hon Lyle Frank. Diaz v. New Water St. Corp., 2024 NY Slip Op 33665(U). Plaintiff employed by third party defendant, Delta Sheet Metal, as to work described as cut and cap work, which required cutting ductwork & then patching it to close it up. Plaintiff had just finished making a cut to the ductwork when accident occurred. Third party plaintiffs sought contractual indemnification against PJ Mechanical. There was no evidence plaintiff’s employer was performing work pursuant to the contract between third-party plaintiffs & PJ Mechanical. Third party plaintiffs failed to establish the contract between it & PJ Mechanical included work performed by plaintiff’s employer, Delta Sheet Metal.  

PJ Mechanical asserted its contract with third party plaintiffs was for the maintenance of the HVAC system & not the work being performed by plaintiff’s employer, Delta Sheet Metal, which was removal of ductwork. As such, third party plaintiffs were not entitled to contractual indemnification from third party defendant PJ Mechanical. The portion of the contract entitled, “Scope of Work” did not include cutting or capping ductwork/  Rather, it was plainly for the inspection, maintenance, and incidental repairs of the HVAC system, not to the ductwork construction.

First Dept.

First Dept. 2021. Work Not Within Scope of Subcontractor’s Work. GC’s indemnity claim against subcontractor dismissed. Subcontractor All Safe’s motion dismissing contractual indemnification claim by GC, Dolner, granted. All Safe obligated to indemnify Dolner for claims “arising out of or in connection with or as a consequence of the performance or non-performance of All Safe’s Work.” Plaintiff’s expert stated All Safe had duty to even out uneven surface underneath platform. However, whether to smooth out uneven ground was not within subcontractor All Safe’s work, but rather the GC, Dolner. As All Safe not responsible for leveling ground underneath platform, the accident not arise from All Safe’s work. Vasquez v. City of NY, 200 AD3d 482;

First Dept. 2017. Issue of fact exists whether work plaintiff performing when accident occurred within scope of Spectrum’s work. Spectrum’s contract unclear as to whether window frame plaintiff was painting when accident occurred included in the scope of work. Fidanza v. Bravo Brio Rest. Group, Inc., 146 AD3d 594; 

First Dept. 2015. Defendant Completed Its Work Before The Accident. Moving defendants seek indemnification from Petrocelli & third-party defendant RSR for death of Mr. Smith, principal of RSR, a subcontractor hired by Petrocelli, when he fell from roof of building under construction. Mr. Smith’s death may have been a suicide. Even giving indemnity provision broadest possible construction, it cannot be said such loss arose out of RSR’s work on the project, especially with testimony RSR had ceased working there before the day of incident. Smith v. Hunter Roberts Constr. Corp., 127 AD3d 647;  

First Dept. 2010. Construction of “catch-all” outside of plans. Indemnification Denied. Purchase order, engineer’s plans & related invoice all reference only construction of the sidewalk bridge, making no reference to additional construction of 8-foot “catchall.” Deposition testimony of parties disagreed as to whether construction of catchall discussed as part of the job. Court affirmed jury’s verdict that entity owed no indemnification as to damages resulting from catchall construction. McDonald v. 450 W. Side Partners, LLC, 70 AD3d 490;   

Second Dept.

Written Modifications to Scope of Work

Second Dept. 2022. Issue of Fact Whether Work Performed to Garage Within Contract’s Scope of Work. Plaintiff employed by NJM Construction & working on exterior of detached garage when he either fell from scaffold surrounding garage or from a ladder. Indemnification provision may not apply to work performed outside of contractual scope intended by the parties. However, contractual requirement for written modifications of scope of work may be waived when conduct of parties demonstrates indisputable mutual departure from written agreement & changes requested by plaintiff & executed by defendant. Scope of NJM’s work as set forth in contract limited to framing & exterior trim for the house & no mention of garage. Changes to contract required in written change order & no evidence such change order issued. However, issue of fact whether waived where NJM requested to perform work on exterior of garage & NJM executed such work. Also, NJM’s work on garage was within the scope of its “trade,” which could potentially bring accident within scope of indemnification provision. Indemnification provision stated, claims caused by breach of Contract, its negligence … in the performance of contract and/or NJM’s trade. Torres v. Accumanage, LLC, 210 AD3d 718;  

Second Dept. 2016. Accident Not Caused by Contractor’s Work. Indemnification Denied. Plaintiff fell while descending interior staircase because of insufficient lighting in building owned by Decker. Defendant Athens Electric entered into contract with Decker to perform certain electrical work in building & on day of accident, disconnected electricity to common areas to perform electrical work in connection with installation of cooling tower. Decker entered into separate contract with Perfectaire Co. to install cooling tower. Building owner Decker’s contractual indemnification claim against Perfectaire dismissed as Perfectaire’s work not include electrical work performed by Athens Electric. Perfectaire established Athens Electric not its subcontractor. Indemnity clause not triggered as plaintiff’s accident not arise or result from Perfectaire’s work. Staron v. Decker, 135 AD3d 846;    

Second Dept. 2015. Area of Stucco Work Performed by Plaintiff Not Part of Contracted Work. Indemnification Dismissed. While Spectrum’s contract relating to the project required it to indemnify owner & construction managers against all liability arising out of or connected with performance of Spectrum’s work under the contract, Spectrum showed indemnification clause inapplicable as plaintiff was injured applying stucco to the building roof, which was outside scope of painting work to be performed by Spectrum under the contract. Lombardo v. Tag Ct. Sq., LLC, 126 AD3d 949;

No Indemnification Obligation. Accident Not Occur on Demised Premises.

Second Dept. 2010. Lease indemnification clause provided “shall not be liable for any injury to any person on the demised premises or any part thereof.” Plaintiff’s accident occurred 100 feet away from demised premises as he prepared cement for delivery to demised premises. As accident not occur on demised premises, subcontractor not obligated to indemnify premises owner. D’Alto v. 22-24 129^th St., LLC, 76 AD3d 503;

Third Dept.

Third Dept. 2018. Indemnification Allowed. Accident Occurred Within Scope of Change Order. Young contended Mercer not entitled to conditional contractual indemnity as repair work leading to accident outside scope of contract, which was limited to roof replacement & made no provision for repairs & because no written change order modifying scope of work was executed as contract required.  However, indemnification provision may apply to injuries caused by work performed outside of the contractual scope intended by the parties.  Contractual requirement for written modifications of scope of work may be waived when conduct of parties demonstrates indisputable mutual departure from written agreement & changes clearly requested by plaintiff & executed by defendant.  Evidence showed flexible practice by which subcontractors sometimes performed repairs not specified in contract sans submitting written change order. Foreman testified he did not submit a change order for such repair work & his company did not receive additional payment. Burhmaster v. CRM Rental Management, Inc., 166 AD3d 1130;

Fourth Dept.

Fourth Dept. 2018. Indemnification Denied. Roofing Work Outside Scope of Contract. The “Work” defined in contract addendum as those services “more fully described in the contract, invoice, purchase order or other attached document referencing the Contractor’s work and services to be provided, which is incorporated by reference herein and made a part thereof.” As such plain language of addendum limits indemnification agreement to only certain work of Sattora, i.e., work for which defendants had written agreement or record that was contemporaneously executed with addendum. As no written contract or other record executed for Sattora’s performance of relevant roofing work, no valid indemnification agreement arising out of such work. Provens v. Ben-Fall Dev., LLC, 163 AD3d 1496;

Fourth Dept. 2005. Physical Altercation Outside Scope of Indemnification. Third party defendant, Leone Construction moved to dismiss the third party action for contractual indemnification brought by the GC, Baker Heavy Highway. Baker’s employee was not acting in furtherance of Baker’s business when he assaulted Leone’s employee.  Baker’s employee attempted to punch the Leone employee. Subcontract obligated Leone to defend & indemnify Baker against any claim for personal injury caused by, resulting from, arising out of or occurring in connection in connection with the execution of Leone’s work. Leone had no duty of contractual indemnification to Baker. Language of indemnity agreement should not be extended to include damages which are neither expressly within its terms nor of such character that it is reasonable to infer that they were intended to be covered under the contract. As plaintiff not acting within scope of his employment by assaulting the Leone employee, no contractual duty of Leone to indemnify Baker. Zanghi v. Laborers’ Inter. Union of North Amer., 21 AD3d 1370;    

October 21. Defense to 240(1). Installation of Safety Device Contrary to Work Objectives. 240(1) Action Dismissed.

Comment. Example is where plaintiff fell into a hole in the floor at the work site. Such hole could not be covered with plywood because the hole was to be filled with concrete as part of the work being performed. Placing a protective cover over the hole would have defeated the work being performed.  As such, 240(1) action dismissed. Was lack of a safety device prevented by the nature of the task? Could the work have been performed with a safety device in place?

Court of Appeals.

Court of Appeals. 2011. Installation of a protective device would have been contrary to the objectives of the work plan in the basement. Salazar testified he was directed to pour & spread concrete over entire basement floor, a task that included filling the trenches. Put simply, it would be illogical to require owner or GC to place a protective cover, or otherwise barricade, a 3 or 4 foot deep hole when very goal of the work is to fill that hole with concrete. It would be impractical & contrary to the work at hand to cover the area where the concrete was being spread, since the settling of concrete requires the work of leveling be done with celerity. Salazar v. Novalex Constr. Corp., 18 NY3d 134;

First Dept.

First Dept. 2024. Rebar. Plaintiff failed to establish entitlement to summary judgment, as there was testimony supporting defendants’ contention that the laying of rebar, in which plaintiff was engaged, was to be followed by pouring of concrete, which would render placing plywood or wooden planks on top of that rebar impractical & contrary to the very work at hand to cover the area where the concrete was being spread. Marte v. Tishman Constr. Corp., 223 AD3d 527; 

First Dept. 2017. Elevator. Securing Device Would Have Defeated Purpose of Plaintiff’s Work. Plaintiff, Elevator mechanic, injured when elevator he was repairing suddenly dropped with him inside. Here, plaintiff was inside the elevator, riding up and down to test it. To the extent plaintiff may have been engaged in repair, within the meaning of 240(1), statute not apply, as any securing device would have defeated the purpose of the work, by precluding him from riding the elevator. Versace v. 1540 Broadway LP, 148 AD3d 483;

First Dept. 2017. No Evidence Securing Device Would Have Defeated Task of Removing Lighting Bar. Plaintiff was removing furniture from exhibition booth at conclusion of trade show when a lighting bar simultaneously being removed from the top of the booth by electricians fell, striking him in the head.  In view of the weight of the lighting bar, court could not conclude the distance it fell was de minimis.  Nor did defendants demonstrate that any securing device would have defeated the task of removing the lighting bar. Rutkowski v. NY Convention Ctr. Dev. Corp., 146 AD3d 686;

Second Dept.

Second Dept. 2013. Not Contrary to Objectives of Work Plan. Plaintiff, employee of superstructure contractor, injured while stripping wooden forms that served as frames into which concrete was poured to form the reinforced concrete columns of a building under construction.  Accident occurred after he had plied a piece of wooden form from the concrete column & placed it on the floor.  As he stood up, a separate piece of the form just above the piece he had removed, suddenly fell off the column. Striking him in the face.  There was triable issue of fact whether the falling piece of form was because of the absence or inadequacy of a safety device enumerated in 240(1).  Contrary to defendants’ assertion, the securing of pieces of form to the column would not have been contrary to the objectives of the work plan, as plaintiff testified the forms were cut into sections & that he was removing a different section than the one that fell on him. Ross v. DD 11^th Ave., LLC, 109 AD3d 604;

October 19. Whether Ladder Was Adequate Safety Device For 240(1). 3 Points of Contact With The Ladder.

Trial Court, Kings County. 2024. Plaintiff’s Motion Denied.  Ladder Not Defective. Gabriel v. Top 8 Constr., 2024 NY Slip Op 33655(U). Hon. Ingrid Joseph. Plaintiff fell off a 6-foot A-frame ladder while running electrical cables through a framed open ceiling inside of a building under construction. Plaintiff inspected the ladder before using and it appeared to be in good working order.  Plaintiff opened the legs of the A-frame ladder, placed all 4 feet of the ladder on the floor and locked the braces in place before climbing up the ladder.  At one point, plaintiff reached out both hands to reach the furthest point in the ceiling and as he did so the ladder began to shake causing him & ladder to fall. Plaintiff had to use both hands to run the wire, preventing him from holding onto the ladder.

Defendant submitted affidavit of Emilio, plaintiff’s foreman, stating, he found no issues with the ladder after the accident and the ladder was placed back into use after plaintiff’s accident. Defendant’s engineer, Mr. Lorenz, opined the ladder was suitable and appropriate for plaintiff’s work.

Hon. Ingrid Joseph cited 3 reasons to support the Court’s conclusion of an issue of fact whether the ladder provided proper protection under 240(1) was a question of fact for the jury.

1. Plaintiff’s deposition testimony that he inspected the ladder and the ladder’s stability before performing his work and that the ladder did not fall until plaintiff tried to reach the furthest point with no hands holding the ladder or placed on the ladder;
2. Emilio’s affidavit that the ladder was not defective and was returned to use after the accident.
3. Defendant’s expert witness engineer Mr. Lorenz opining that the ladder was a suitable and appropriate safety device for plaintiff’s work.

Comment. Where plaintiff’s testimony was that his work prevented him from holding onto the ladder, as both hands were required for the electrical wiring work, was defendant’s expert, Mr. Lorenz, incorrect in opining such ladder was an adequate safety device? The issue is not whether the 6-foot A-frame ladder was defective, it is whether such ladder was adequate for the work performed as plaintiff was prevented from maintaining 3 points of contact with the ladder.

American National Standard For Ladders-Fixed Safety Requirements, at A14.3-2008 provides:

9.2.1.  When ascending/descending a ladder, the user shall face the ladder and maintain three-point contact at all times. The three-point contact consists of 2 feet and one hand or two hands and 1 foot which is safely supporting users weight when ascending/descending a ladder.

In DiBrino v. Rockefeller Ctr. N., Inc., 230 AD3d 127 (1^st Dept. 2024), plaintiff was using a 6-foot A-frame ladder to perform measurements. While plaintiff was measuring above his head, the ladder moved, causing plaintiff to lose his balance, suffering a fall. The site foreman “admitted that there was no way for plaintiff to do the work that needed to be done while maintaining three points of contact with the ladder.”  Plaintiff was awarded summary judgment on the 240(1) action.

In Mayo v. Metropolitan Opera Assn., Inc., 108 AD3d 422 First Dept. 2013,plaintiff had to climb a ladder on the sixth floor of the Opera House to exit onto a roof through a hatch door in ceiling. Hatch door was easy to open but difficult to close because of broken hinge and 2 hands required to close it. Plaintiff fell from ladder while trying to close hatch door. Lincoln Center’s chief engineer testified that to close hatch door worker had to break 3-point stance with ladder & wedge his body up against concrete side of hatch to close hatch door. As defendant failed to provide adequate safety devices from risks associated with gaining access to Opera House roof, defendant liable under 240(1).

In a different holding, Fourth Dep. In Ward v. Corning Painted Post Area Sch. Dist., 192 AD3d 1563 (2021), held the accident resulted from plaintiff’s actions and not because of inadequate safety device. In denying plaintiff’s 240(1) summary judgment motion, it was noted, “Plaintiff testified that he knew he should climb a ladder only when he was able to maintain three points of contact with the ladder and admitted that he was not able to do so while carrying the pour stop.” Where there is a fall from a ladder, in determining whether such ladder was an adequate safety device under 240(1), did the nature of plaintiff’s work prevent plaintiff from maintaining 3 points of contact with the ladder?  Where a plaintiff must use two hands in performing the work task on the ladder, a scaffold should be utilized instead of a ladder.  A foreman or site safety inspector must be cognizant of work preventing three points of contact with a ladder.  Again, note the Ward decision places the onus on the worker.

October 18. Appellate Courts & Trial Judges on Pain & Suffering Awards of Brain Injuries

First Dept.

First Dept. 2021. Perez v. Live Nation Worldwide, Inc., 193 AD3d 517;

Trial Court. Supreme Court, Bronx County.

Traumatic brain injury. Encephalomalacia; cerebral atrophy; traumatic epilepsy; cognitive deficits in attention; processing speed, memory, visual inspection.

Jury Award. $10.5 million for past pain & suffering. $75,250,000 for future pain & suffering over 43 years.

Appellate Court reduced award for past pain & suffering to $5 million. Reduced award for future pain & suffering to $15 million.

First Dept. 2021. Hedges v. Planned Sec. Serv. Inc., 190 AD3d 485;

Trial Court. Supreme Court, NY County.

Struck by a falling shopping cart thrown from an upper level at a mall.

Traumatic brain injury. Plaintiff sustained extensive organic brain damage, which is something more than TBI. There was actual brain shrinkage or atrophy.

Jury Award. $29 million jury award for future pain & suffering reduced by trial court to $14.5 million.

Appellate Court decreased future pain & suffering award to $10 million.

First Dept. 2016. Andino v. Mills, 135 AD3d 407;

Trial Court. Supreme Court, Bronx County.

Motor vehicle accident.

Brain injury resulting in permanent cognitive impairment. 3 surgeries to her knees.

Jury Award. $600,000 for past pain & suffering. $23 million for future pain & suffering over 37 years.

Appellate Court reduced award of future pain & suffering to $2.7 million.  

First Dept. 2013. Lindenman v. Kreitzer, 105 AD3d 477;

Trial Court. Supreme Court, NY County.

Brain injury. No surgery. Able to drive & play tennis.

Jury Award. $1.5 million for past pain & suffering. &4 million for future pain & suffering.

Appellate Court reduced award for past pain & suffering to $500,000. Reduced future pain & suffering to $750,000.  

First Dept. 2011. Godfrey v. GE Capital Auto Lease, Inc., 89 AD3d 471;

Trial Court. Supreme Court, Bronx County.

College age plaintiff suffered brain injury. MV accident.

Jury Award. $3,332,000 for future pain & suffering.

Appellate Court. Reduced award for future pain & suffering to $2.5 million.

First Dept. 2011. Angamarca v. NYC Partnership Hous. Dev. Fund, Inc., 87 AD3d 206;

34 year old plaintiff fell from the roof of a townhouse while engaged in carpentry work.

Traumatic brain injury; multiple fractures of vertebrae; rib fractures; leg fractures & wrist fracture. 6 weeks in hospital. He underwent a tracheotomy to ease his breathing.  Surgery was performed to remove contused portion of the brain & portion of his skull to reduce pressure.  Multiple fractures of vertebrae resulted in increased kyphosis (curvature) of the spine, requiring surgery. Such surgery consisted of spinal fusion of the vertebrae and insertion of plates, nuts, screws and rods into plaintiff’s back. Plaintiff was left with one leg shorter than the other, a rounded spine, malunion in his wrist and an indentation in his face from a craniectomy.

Jury Award. $100,000 for past pain & suffering. $1 million for future pain & suffering over 40 years.

Appellate Court increased award to $1.5 million for past pain & suffering. $3.5 million for future pain & suffering.    

First Dept. 2009. Sadhwani v. NYC Tran. Auth., 66 AD3d 405;

Trial Court. Supreme Court, NY County.

Brain injury.

Jury Award. $1.9 million for past & future pain & suffering over 10 years.

Appellate Court affirmed jury award.

First Dept. 2009. Hernandez v. Vavra, 62 AD3d 616;

Trial Court. Supreme Court, NY County.

Traumatic brain injury termed a subarachnoid hemorrhage.

Jury Award. $1 million for past pain & suffering. $1.75 million for future pain & suffering over 15 years.

Appellate Court affirmed jury award.

First Dept. 2008. Cintron v. NYC Tr. Auth., 50 AD3d 466;

14 year old struck by subway car.

Trial Court. Supreme Court, Bronx County.

Traumatic brain injury & hip fracture. Cognitive impairments as significant deficits in perceptual organization, processing speed and memory; residual weakness in left hand.

Jury Award. $20 million for past and future pain & suffering.

Appellate Court reduced past pain & suffering award to $4.75 million.

First Dept. 2006. Paek v. City of NY, 28 AD3d 207;

Trial Court. Supreme Court, NY County.

Tripped over metal spike which was not visible at night.

Brain injury resulting in permanent cognitive impairment affecting her memory, concentration, organizational ability & emotional response.

Jury Award. $5 million for future pain & suffering over 40 years.

Appellate Court reduced award for future pain & suffering to $3 million.

First Dept. 2005. Chelli v. Banle Assoc., LLC, 22 AD3d 781;

Trial Court. Supreme Court, Queens County.

Plaintiff’s neuropsychologist testified brain injury rendered plaintiff permanently & totally disabled.

Jury Award. $3.5 million for future pain & suffering.

Appellate Court reduced future pain & suffering award to $2.5 million.  

Second Dept.

Second Dept. 2020. Xiaoen Xie v. Park Place Estate, LLC, 181 AD3d 627;

Supreme Court, Queens County.

Construction site accident.

Spinal fracture requiring fusion surgery & head injury involving intracranial hemorrhage.

Jury Award. $75,000 for past pain & suffering. $250,000 for future pain & suffering.

Appellate Court affirmed jury award. 

Second Dept. 2016. Alcantara v. NYS Tr. Auth., 140 AD3d 808;

Venue. Supreme Court, Kings County.

Trial Court Judge. Judge Velasquez

69 year old. Fell down stairs at subway station.

Traumatic brain injury; comminuted left acetabular fracture; post-traumatic seizure disorder.

Jury Award. $5 million for past pain and suffering. $11 million for future pain and suffering over 16 years.

Appellate Court reduced award for past pain & suffering $2 million. Reduced future pain & suffering to $3 million.

Second Dept. 2015. Turturro v. City of NY, 127 AD3d 732;

Trial Venue. Kings County. Judge Kramer.

12 year old riding a bicycle struck by a car.

Coma for 5 months. Extensive skull fractures; subdural hematomas and intercranial hypertension. Fractures to his ankle and hip & collapsed lung. Numerous surgeries & developed a seizure disorder.  Brain injuries permanently diminished infant plaintiff’s cognitive & motor functioning.

Jury Award. $6 million for past pain & suffering. $15 million for future pain & suffering.

Appellate Court reduced award past pain & suffering to $3 million. Reduced future pain & suffering to $7 million.  

Second Dept. 2011. Belt v. Girgis, 82 AD3d 1028;

Trial Court. Supreme Court, Queens County.

Pedestrian struck by vehicle.

Coma for 3 weeks; intracranial hemorrhage to left parietal hemisphere and left frontal lobe intra-axial hematoma with right temporal bone fracture. Left femoral fracture. Right clavicular fracture. Fracture of right medial malleolus. Fracture of pubic-rami.

Jury Award. $5 million for past pain & suffering. $10 million for future pain & suffering.

Appellate Court. Reduced award for past pain & suffering to $2 million. Reduced award for future pain & suffering to $3 million.     

Third Dept.

Third Dept. 2010. Garrison v. Lapine, 72 AD3d 1441;

Trial Court. Supreme Court, Ulster County.

Traumatic brain injury.

Jury Award. $500,000 for past pain & suffering. $2 million for future pain & suffering for a period of 31 years.

Appellate Court affirmed jury award.

Third Dept. 2009. Doviak v. Lowe’s Home Ctrs., Inc., 63 AD3d 1348;

Trial Court. Supreme Court, Ulster County.

Fell 22 feet from roof to ground.

35 years old. Irreversible brain damage. Total loss of sight, partial loss of his senses of smell & taste and significant loss of hearing.  Impaired mental functioning.

Jury Award. $200,000 for past pain & suffering. $800,000 for future pain & suffering for 32 years.

Trial Court. Increased past pain & suffering to $1.2 million. Increased future pain & suffering to $2.9 million. 

Appellate Court. Increased future pain & suffering to $3.9 million.

Third Dept. 2009. Popolizio v. County of Schenectady, 62 AD3d 1181;

Trial Court. Supreme Court, Schenectady County.

56 year old. Traumatic brain injury.

Jury Award. $1 million for past pain & suffering. $3.6 million for future pain & suffering over 23 years.

Trial court reduced award for past pain & suffering to $350,000 & reduced award for future pain & suffering to $1.25 million.

Appellate Court increased future pain & suffering $1.75 million. 

Third Dept. 2001. Auer v. State, 289 AD2d 626;

Trial Court. Court of Claims.

18 years old. MV accident.

Traumatic brain injury causing plaintiff to experience quadriplegia & significant cognitive defects.   

Appellate Court. Increased future pain & suffering award to $1.5 million.

Third Dept. 2004. Tassone v. Mid-Valley Oil Co., Inc.; 5 AD3d 931;

Trial Court, Supreme Court, Columbia County.

22 year old suffered fall from roof of a building.

Severe closed head injury and traumatic encephalopathy.

Jury Award. $1,345,570 for past pain & suffering. $1 million for future pain & suffering.

Appellate Court affirmed jury award.  

October 17. Pre-Impact Terror. Sub-Category of Conscious Pain & Suffering.

Damages for pre-impact terror are designed to compensate decedent’s estate for the fear a decedent experienced during the interval between the moment the decedent appreciated the danger resulting in decedent’s death & moment decedent sustained a physical injury as a result of the danger. NY PJI 2-320, Caveat 3.

First Dept.

First Dept. 2017. Matter of 91 St St. Crane Collapse Litig., 154 AD3d 139;

Trial Court. Supreme Court, NY County.

34-story building was under construction. Crane did not fall straight to the ground. It first teetered & then fell backward from height of 200 feet, struck a building & bounced off a number of terraces before reaching the ground.

Jury Award. $7.5 million for pre-impact terror.

Appellate Court reduced pre-impact terror award to $2.5 million.   

First Dept. 2013. Santana v. De Jesus, 110 AD3d 561;

Trial Court. Supreme Court, NY County.

Bus accident.

Jury Award for conscious pain & suffering and pre-impact terror $750,000.

Appellate Court reduced such award to $375,000.

First Dept. 1991. Torelli v. City of NY, 176 AD2d 119;

Trial Court. Supreme Court, Bronx County.

MV accident. Struck by motorist going in wrong direction.

Appellate Court awarded $250,000.

Second Dept.

Second Dept. 2019. Simon v. Granite Bldg. 2, LLC, 170 AD3d 1227;

Trial Court. Supreme Court, Nassau County.

Vehicle slid on ice of surface of incomplete parking garage, broke through steel cable guardrail system & fell 32 feet into excavation pit in the lower level of the garage. Plaintiff jumped out of the vehicle before it fell. Plaintiff heard decedent scream out his name while the vehicle fell. Decedent died at the scene.

Jury Award. $500,000 for pre-impact terror.

Appellate Court affirmed jury award.

Second Dept. 2018. Vatalaro v. County of Suffolk, 163 AD3d 893;

Trial Court. Supreme Court, Suffolk County.

Evidence showed decedent made eye contact with defendant bus operator for approximately one second before the bus collided with decedent’s vehicle.

Jury Award. $250,000.

Appellate Court reduced jury award to $50,000. 

Second Dept. 2017. Vargas v. Crown Container Co., Inc., 155 AD3d 989;

Trial Court. Supreme Court, Kings County.

22 year old decedent employed as helper on private garbage truck owned by Crown Container Co., Plaintiff sustained fatal injuries when the garbage truck lurched backwards, pinning him against a garbage dumpster. Pre-impact pertains to the emotional pain & suffering the decedent may have endured between the moment he was aware vehicle was about to hit him & moment of impact. Plaintiff’s engineer testified it would have taken less than a second for the garbage truck to strike the decedent after it started moving in reverse. Decedent was facing rear of the truck. Plaintiff’s medical expert opined it took “approximately one or two minutes” for decedent to die from his internal injuries.

Jury Award. $1 million for pre-impact terror. $2 million for conscious pain & suffering.

Appellate Court reduced pre-impact terror award to $250,000. Reduced conscious pain & suffering to $750,000.

Third Dept.

Third Dept. 1997. Lang v. Bouju, 245 AD2d 1000;

MV accident. Decedent drive his motorcycle into truck crossing double yellow line.

Jury Award. $239,125.

Appellate Court reduced award to $100,000.

Fourth Dept.

Fourth Dept. 2015. Gardner v. State of NY, 134 AD3d 1563;

Trial Court. Court of Claims.

Decedent died of injuries when vehicle he was driving slid across the roadway, struck a snowbank packed against a concrete barrier & vaulted off the highway bridge onto a roadway below.

Court of Claims awarded $250,000 for preimpact terror.

Appellate Court affirmed award.

October 16. No Industrial Code Violation as Installation of Safety Device Was “Contrary to Objectives of Work Plan.”

First Dept., 2024 decision, Urquia v. Degan 135 Realty LLC, 2024 NY Slip Op 05080, held that plaintiff’s reliance on 23-1.7(a)(1) was misplaced as such code not apply given that overhead planking protection called for under 23-1.7(a)(1) would interfere with plaintiff’s ability to perform his work stripping forms from the ceiling.  The decision cited the Court of Appeals’ holding in Salazar v. Novalex Contr. Corp., 18 NY3d 134 (2011) where plaintiff and other workers were laying a concrete floor in a basement. Plaintiff was directed to pour and spread concrete over entire basement, including trenches. Plaintiff when he was walking backwards across the floor he stepped into a trench filled with concrete. There was no barricade around the trench. In dismissing the 240(1) action it was held that installing a barricade around the subject trench “would have been contrary to the objectives of the work plan in the basement.”  “Put simply, it would be illogical to require an owner or GC to place a protective cover over, or otherwise barricade, a 3-4 foot deep hole when the very goal of the work is to fill the hole with concrete.” Urquia v. Deegan 135 Realty LLC, 2024 NY Slip Op 05080;

Comment. The defense here is the work to be performed could not be performed if some type of protective safety device was put in place. In Urquia, plaintiff, while standing on a ladder, was struck by 20 to 30 pound small beams falling from a ceiling, causing a loss of balance on unsecured ladder. As plaintiff was stripping form from such ceiling, overhead planking protection would have interfered with plaintiff’s striping work. As such, there is a defense when failing to provide code mandated safety devices where such devices prevent or interfere with the work to be performed. Below are other decisions addressing the defense whether safety devices were contrary to “work objectives.”

Court of Appeals.

Court of Appeals. 2011. It was held installation of a protective device would have been contrary to the objectives of the work plan in the basement. Salazar testified he was directed to pour & spread concrete over entire basement floor, a task that included filling the trenches. Put simply, it would be illogical to require owner or GC to place a protective cover, or otherwise barricade, a 3 or 4 foot deep hole when very goal of the work is to fill that hole with concrete. It would be impractical & contrary to the work at hand to cover the area where the concrete was being spread, since the settling of concrete requires the work of leveling be done with celerity. Salazar v. Novalex Constr. Corp., 18 NY3d 134;

First Dept.

First Dept. 2024. Rebar. Plaintiff failed to establish entitlement to summary judgment, as there was testimony supporting defendants’ contention that the laying of rebar, in which plaintiff was engaged, was to be followed by pouring of concrete, which would render placing plywood or wooden planks on top of that rebar impractical & contrary to the very work at hand to cover the area where the concrete was being spread. Marte v. Tishman Constr. Corp., 223 AD3d 527; 

First Dept. 2017. Elevator. Securing Device Would Have Defeated Purpose of Plaintiff’s Work. Plaintiff, Elevator mechanic, injured when elevator he was repairing suddenly dropped with him inside. Here, plaintiff was inside the elevator, riding up and down to test it. To the extent plaintiff may have been engaged in repair, within the meaning of 240(1), statute not apply, as any securing device would have defeated the purpose of the work, by precluding him from riding the elevator. Versace v. 1540 Broadway LP, 148 AD3d 483;

First Dept. 2017. No Evidence Securing Device Would Have Defeated Task of Removing Lighting Bar. Plaintiff was removing furniture from exhibition booth at conclusion of trade show when a lighting bar simultaneously being removed from the top of the booth by electricians fell, striking him in the head.  In view of the weight of the lighting bar, court could not conclude the distance it fell was de minimis.  Nor did defendants demonstrate that any securing device would have defeated the task of removing the lighting bar. Rutkowski v. NY Convention Ctr. Dev. Corp., 146 AD3d 686;

Second Dept. Second Dept. 2013. Not Contrary to Objectives of Work Plan. Plaintiff, employee of superstructure contractor, injured while stripping wooden forms that served as frames into which concrete was poured to form the reinforced concrete columns of a building under construction.  Accident occurred after he had plied a piece of wooden form from the concrete column & placed it on the floor.  As he stood up, a separate piece of the form just above the piece he had removed, suddenly fell off the column. Striking him in the face.  There was triable issue of fact whether the falling piece of form was because of the absence or inadequacy of a safety device enumerated in 240(1).  Contrary to defendants’ assertion, the securing of pieces of form to the column would not have been contrary to the objectives of the work plan, as plaintiff testified the forms were cut into sections & that he was removing a different section than the one that fell on him. Ross v. DD 11^th Ave., LLC, 109 AD3d 604;

October 16. Additional Insureds’ Third Party Claims Barred by Anti-Subrogation Rule to The Extent of Primary Policy’s Limits.

In Urquia v. Deegan 135 Realty LLC, 2024 NY Slip Op 05080, one of the issues addressed was New York’s anti-subrogation rule which bars an insured, under the direction of its insurance company, from suing another insured on the same policy. It was held that since “Deegan/Chess were named as additional insureds on Capital’s commercial general liability policy (CGL), their third party claims for contractual indemnification were barred by the anti-subrogation rule. The cited the First Dept. decision, Pastorino v. City of NY, 191 AD3d 440 (2021). The decision noted the limits of the anti-subrogation rule to the primary policy. “However, to the extent Deegan’s/Chess’ contractual indemnification claims seek relief in the event a liability award exceeds the CGL policy limits, the umbrella/excess liability coverage required under the subcontract terms would be triggered.”

Comment. Third party defendant is usually the subcontractor whose work resulted in plaintiff’s accident. Where that subcontractor was contractually obligated to name the third party defendant, who is usually the owner and/or GC, as additional insured on its liability, and in fact did so, the third party defendant and the third party plaintiff are now insureds under the same policy. As both entities are insured under the same policy, anti-subrogation bars insureds under the same policy from suing each other.  GC’s third party action against the subcontractor is dismissed. Below are other cases addressing the anti-subrogation rule.

First Dept.

First Dept. 2021. Extent Premier’s & Godsell’s insurance carriers are defending & indemnifying owner defendants, or are required to do so, owner defendants’ claim for indemnification against Premier & Godsell barred by anti-subrogation rule. Hammer v. ACC Constr. Corp., 193 AD3d 455; 

First Dept. 2021. City’s indemnification & contribution cross claims against Commodore barred by anti-subrogation ruleas City of NY was a named additional insured under Commodore’s general liability insurance policy covering subject work. Pastorino v. City of NY, 191 AD3d 440;

First Dept. 2020. City of NY’s cross claim against B&H for breach of contract for failure to procure insurance dismissed as B&H procured a policy naming City of NY as an additional insured. To the extent of such coverage, City of NY & B&H’s remaining cross claims against each other barred by anti-subrogation rule. Astrakan v. City of NY, 184 AD3d 444;

First Dept. 2019. Complaint dismissed as permitting ACT to maintain a claim against Breeze, when both are insured by Century, violates anti-subrogation rule. Wilk v. Columbia Univ., 171 AD3d 570;

First Dept. 2015. Burlington policy provided NYCTA coverage as additional insured for liability arising from injury to plaintiff. As such, anti-subrogation rule bars Burlington from recovering, as the City’s subrogee, contractual indemnification from NYCTA under the lease for amounts expended in the settlement & defense of the Kenny action on behalf of City. Burlington Ins. Co. v. NYC Tr. Auth., 132 AD3d 127;

First Dept. 2010. IICNA’s claim against Yonkers Contracting barred by anti-subrogation rule because Yonkers Contracting was additional insured under the excess policy issued by LLCNA. Indemnity Ins. Co. of N. Am. V. St. Paul Mercury Ins. Co., 74 AD3d 21;

First Dept. 2003. As required under their contracts with MN/MTA, both Gelco & LS Transit procured general liability insurance, Gelco with Calvert Insurance and LS Transit with Royal Insurance, naming MN/MTA as additional insureds. Gelco, seeking indemnification & contribution, brought third party action against premises owner MN/MTA for slip and fall accident at train station. By virtue of plaintiff’s claims of negligence for its work at the Woodlawn train station, any liability imposed on MN/MTA would fall within the ambit the insurance provided MN/MTA by Gelco under Calvert policy.  Anti-subrogation rule applied. Pitruzello v. Gelco Builders, 304 AD2d 302;

First Dept. 2002. Owner & GC additional insureds on CGL policy of subcontractor from National Casualty. Although National Casualty did not assume its obligation to defend & indemnify owner & subcontractor, third party action sought to impose that obligation.  Had the case not settled, third party action would have been dismissed pursuant to anti-subrogation rule. National Casualty v. Allcity Ins., 290 AD2d 362;

First Dept. 1996. Complaint alleged plaintiff fell on steel rods while working at construction site for third party defendant Lehrer. Accident occurred within work area of third party plaintiff. Rule that an insurer has no right of subrogation against its own insured for a claim arising out of the very risk for which the insured was covered  barred third party claim. Lim v. Atlas-Gem Erectors Co., 225 AD2d 304;

Second Dept.

Second Dept. 2009. Anti-subrogation applies to bar cross claims of Key Bank for contractual and/or common law indemnification against the Annabis.  Both Key Bank & Annabis covered by the same insurer for the same risk. Porter v. Annabi, 65 AD3d 1322;

Second Dept. 2003. Holt not entitled to contractual indemnification against Schaeffer as anti-subrogation rule provides an insurance company cannot recover from its own insured for the very risk for which the insured was covered. Schaeffer’s policy named Holt as additional insured. As the same insurance company covers Holt & Schaeffer for the same risk, anti-subrogation rule applies & indemnification barred to extent any verdict in favor plaintiffs is within the limits of the policy purchased by Schaeffer. Storms v. Dominican College of Blauvelt, 308 AD2d 575; 

Second Dept. 2000.Sherry-Netherland was named as additional insured on insurance policy issued to Coyne. As same insurer covers Sherry-Netherland & Coyne for the same risk, that is, bodily injury allegedly caused by Coyne’s work, there is potential conflict of interest. As such, anti-subrogation rule applies, & Coyne’s third party action against Sherry-Netherland is barred to extent that any verdict in favor of plaintiff does not exceed the limits of the liability insurance policy purchased by Coyne in which Sherry-Netherland is named as additional insured. Kim v. Herbert Constr., 275 AD2d 709;   

Second Dept. 1999. Anti-subrogation rule precluded third party plaintiff from maintaining causes of action for indemnification against third party defendant. Both third party plaintiff and third party defendant were named insureds on 2 policies issued by St. Paul Fire and Marine Insurance Co. covering same risk. Such double representation created a conflict of interest, warranting dismissal of third party action. Glick v. Millman Goldberg Pressler Assoc., 263 AD2d 497;

Second Dept. 1998. Yonkers Contracting entered into contract with Rice-Mohawk, requiring Rice-Mohawk to perform metal work.  Pursuant to this contract, Rice-Mohawk obtained general liability policy from Admiral Insurance & an umbrella policy from General Star Insurance. Both policies named Yonkers Contracting as additional insured. Rice-Mohawk employee was injured at work site & brought action against Yonkers Contracting, which brought third party action against Rice-Mohawk, seeking common law indemnification and contribution. Anti-subrogation rule barred Admiral and General Star from passing the risk of loss from themselves to their insured, Rice-Mohawk. Pierce v. City of NY, 253 AD2d 545;

Second Dept. 1997. Plaintiff injured in course of his employment with Capan Contracting. Capan obtained owners and contractors protective liability policy from Nationwide Mutual, naming only the City of NY as insured. Capan obtained general liability insurance from Nationwide, naming both itself and City of NY as insureds. Capan also purchased excess policy from Nationwide. Held that City of NY’s claim was in actuality a claim by Nationwide against its own insured and as such, barred by anti-subrogation rule to the extent a verdict does not exceed the limits of coverage Capan procured from Nationwide. Morales v. City of NY, 239 AD2d 566;  

Second Dept. 1996. As the appellants and Staller are named insureds on the Home policy, the anti-subrogation rule applies and the motion court properly dismissed the third party action. Hebert v. Staltac Assocs., 231 AD2d 675;

Second Dept. 1995. Plaintiff fell from ladder while working for third party defendant Confort at premises owned by third party plaintiff NYC Industrial Dev. Agency. Confort obtained general liability insurance from Aetna naming both itself and the Agency as insureds. Agency’s claim is a claim by Aetna against its own insured & insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered. Tempesta v. City of NY, 214 Ad2d 723;

Third Dept.

Third Dept. 1996. Anti-Subrogation Rule Applied. Plaintiff’s employer, Kryzak, Inc., entered into contract with defendant to remove & replace piping at defendant’s facility. While engaged in such work, Kryzak’s worker fell from elevated height. Pursuant to such work, Kryzak obtained CGL policy from General Accident where it was named as insured & company where Kryzak performing work named additional insured. When worker falling from elevated height brought action against premises owner & such owner filed third party action against Kryzak, General Accident agreed to provide legal representation to Kryzak & premises owner. Third party action barred by anti-subrogation rule, as premises owner, as an additional insured, could not sue Kryzak, an insured under same policy providing coverage for the same risk. Premises owner argued anti-subrogation not apply as Kryzak had separate workers’ compensation policy. However, such workers’ compensation policy not negate conflict of interest created by General Accident when it undertook representation of Kryzak & premises owner. As such, third party action dismissed. Cox v. International Paper Co., 234 AD2d 757;  

Fourth Dept.

Fourth Dept. 2016. Hanover Insurance, as the real party in interest in NRG’s third party action, may not seek indemnification from ICC because under anti-subrogation rule, insurer has no right of subrogation against its own insured for a claim arising from the very risk for which insured was covered even where the insured has expressly agreed to indemnify the party from whom the insurer’s rights are derived. Mitchell v. NRG Energy, Inc., 142 AD3d 1366;  

Fourth Dept. 2011.  Anti-subrogation rules bars Klewin’s third-party action inasmuch as Mader and Klewin were insured under same primary & excess policies, except to the extent Klewin seeks indemnification for amounts in excess of the coverage afforded by the policies at issue. Karcz v. Klewin Bldg. Co., Inc., 85 A.D.3d 1649.

Anti-Subrogation Rule Inapplicable

Different Policies. Insurer of Third Party Plaintiff Seeking Recovery From Non-Insured.

Comment. If third party plaintiff seeks recovery from third party defendant under a different policy than the policy naming the third party defendant as additional insured, anti-subrogation rule not apply. Such rule only applies when third party plaintiff is seeking coverage under the policy naming both third party plaintiff & third party defendant as insureds. It does not matter, for purposes of anti-subrogation rule, that one entity is additional insured rather than a named insured on the subject policy.

Court of Appeals

Court of Appeals. 2016. Anti-Subrogation Not Apply As Entity Not an Insured. Anti-subrogation rule requires the party the insurer is seeking to enforce its right of subrogation against is its insured, an additional insured, or a party intended to be covered by the insurance policy. Here, ANP & its predecessor not insured under relevant insurance policies. When SCM transferred assets & liabilities of its paint business to HSCM-6 (ANP’s predecessor), insurance policies that were applied to SCM were specifically excluded from that distribution. Rather, the insurance policies were placed in HSCM-6, predecessor of Millenium. As such, ANP was never insured by the insurers here. Thus, principal element for application of anti-subrogation rule that the insurer seeks to enforce its right of subrogation against its own insured, additional insured, is absent. Essential element of anti-subrogation rule is that the party to which the insurer seeks to subrogate is covered by the relevant insurance policy. As ANP is not an insured, there is no risk the insurers will shirk their obligation to one insured in favor of another. Millenium Holdings LLC v. Glidden Co., 27 NY 3d 406;   

Court of Appeals

Court of Appeals. 1984. Anti-Subrogation Not Apply. Entities Insured by Same Insurer Under 2 Separate Policies. Michigan’s reliance on the rule that insurers may not maintain a subrogation action against its own insured is misplaced for such rule speaks to an insured under the same policy. Here Michigan provided 2 policies, one a general liability policy & the second a compensation policy which covered not only DAL’s obligations under Workers’ Compensation Law, but also under paragraph 1(B) of the standard policy required Michigan to pay on behalf of insured all sums which insured shall become legally obligate to pay as damages because of bodily injury by accident by any employee of insured arising out of & in the course of his employment by the insured. Michigan would, therefore, under its compensation policy, be obligated to defend DAL had it been impleaded into in the Gobin action & to indemnify DAL for payment of damages had it been held liable. That obligation would arise, however, not under the liability policy under which it was defending DeFoe & LAD, but under the separate compensation coverage of DAL. Hartford Acc. v. Michigan Mut., 61 NY2d 569;    

First Dept.

First Dept. 2017.Anti-subrogation rule inapplicable as NYCTA not additional insured under the policy. Burlington Ins. v. NYC Tr. Auth., 153 AD3d 438;

First Dept. 1998.Insurer of Third Party Plaintiff Not Insuring Third Party Defendant, Can Assert Subrogation Right Against Third Party Defendant.Anti-subrogation rule applied to bar third party actions against American & its insurer Reliance to extent Turner, 450 & Owen all named as additional insureds on Reliance policy  issued to American pursuant to terms of subcontract. However, as Wausau never undertook to & does not insure American in any way, Wausau may bring action for subrogation in an attempt to recoup from American the claim Wausau paid on behalf of Turner/450. As Wausau was not looking to its own insured, its action not afoul of anti-subrogation rule. A party who does not insure a third party defendant should be permitted to assert a right of subrogation against that third party defendant. Fitch v. Turner Constr. Co., 241 AD2d 166;

First Dept. 1996. Employee of Grenadier working on scaffold when scaffold collapsed. Plaintiff’s employer, Grenadier, obtained policy from Federal Insurance Company, naming the hotel as additional insured. Hotel had CGL policy issued by Fireman’s Insurance. Grenadier moved to dismiss third party action of the hotel because hotel was additional insured on Grenadier’s CGL policy. However, since Grenadier is not an insured on the hotel’s Fireman’s Insurance policy, Fireman’s not precluded from seeking indemnification from Grenadier to extent Fireman’s may be required to pay a portion of eventual settlement or judgment. White v. Hotel D’Artistes, Inc., 230 AD2d 657;

First Dept. 1995. Anti-Subrogation Rule Not Apply. Motion court held anti-subrogation rule applied as third-party plaintiff was named additional insured on third party defendant Regional Scaffolding’s policy with National Union, the insurer providing a defense to Regional Scaffolding. However, in underlying action, Liberty Mutual alone defended Turner & paid for its share of settlement. While Turner was named party, Liberty Mutual was essentially real party in interest in prosecuting third party action against Regional Scaffolding. As Liberty Mutual did not insure Regional Scaffolding & owed it no duty, Liberty Mutual should not be deprived of its equitable tight of subrogation against third parties whose wrongdoing caused a loss for which the insurer is bound to reimburse. National Union Fire Ins. v. State Ins. Fund, 222 AD2d 369;

First Dept. 1994. Anti-subrogation inapplicable here as third party defendant not covered by Citibank’s policy of insurance at the time of accident. Paperman v. Turner Constr. Co, 203 AD2d 205;

Second Dept.

Second Dept. 2012. Plaintiff sought to recover for flooding to portions of its premises.  Skanska contends that under its contract with plaintiff, plaintiff was required to name it as AI. However, such provisions of the contract referred to a builder’s risk endorsement. By August 26, 205, Skanska had provided plaintiff with certificate of substantial completion and NYC Dept, of Buildings had issued a temporary certificate of occupancy, at which point plaintiff cancelled builder’s risk endorsement. As such, builder’s risk endorsement was no longer in effect when flooding occurred, and plaintiff’s claim was pursuant to IPI policies, not builder’s risk endorsement, which insured against different risks. As such, plaintiff is not seeking subrogation against its own insured for a claim arising from very risk for which the insured was covered. Plaintiff entitled to summary judgment. St. John’s Univ. v. Butler Rogers Baskett Architects, PC, 92 AD3d 761;

Second Dept. 2011. Anti-subrogation rule not apply with 2 distinct & separate insurance policies covering different risks. Appellant’s contention that her status as stockholder in subject cooperative corporation not qualify her as additional insured under the policy issued to defendants/third party plaintiffs. While section II (d) of the subject policy states, “your stockholders are also insureds. But only with respect to their liability as stockholders, there was no allegation of stockholder liability in this action. Diaz v. 333 E. 66^th St. Corp., 80 AD3d 652;  

Second Dept. 2009. 2 Separate Policies. Anti-Subrogation Rule Not Apply. Plaintiff, employee of Sorbara, suffered accident while working at construction site owned by Whitehall. Plaintiff filed for workers’ compensation benefits & Sorbara’s workers’ compensation carrier, Travelers Indemnity, paid such benefits. Plaintiff brought action against Whitehall. Travelers Indemnity paid $2 million to settle the negligence action & Whitehall’s excess insurer paid remainder of settlement amount. Travelers Indemnity’s assertion of workers compensation lien against the settlement to which it contributed as general liability carrier not violate anti-subrogation rule. As Travelers’ obligation to pay workers’ compensation benefits to Sorbara’s employee did not arise under general liability policy under which it was defending Whitehall in the negligence action, but rather under a separate policy issued to Sorbara, Travelers was not seeking a right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered. Romano v. Whitehall Properties, 59 AD3d 697;

Second Dept. 2008. 2 Different Policies. Anti-Subrogation Rule Not Apply. Defendants failed to establish that Utica paid Ares’ claim solely pursuant to the liability policy under which defendants are named as additional insureds. As defendants failed to tender proof foreclosing the possibility that Utica properly covered Ares under the property damage policy, under which defendants are not named as additional insureds, defendant s failed to establish that anti-subrogation rule barred the action. Utica v. Brooklyn Navy Yard Dev. Corp., 52 AD3d 821; 

Second Dept. 2000. Plaintiff’s Employer Not an Insured Under GC’s Policy. Anti-Subrogation Rule Not Apply. Plaintiff suffered accident while in the course of work for his employer, Hightower, third party defendant. Not disputed that prosecution of third party action against Hightower was pursuant to a policy procured by Abcon, the GC for the project from Providence Washington Insurance Company. Hightower was not an insured on Providence Washington policy. As such, any recovery by Providence as against Hightower would not be a recovery against an insured of Washington. Dillion v. Parade Mgmt. Corp. 268 AD2d 554;

Second Dept. 1995. Anti-Subrogation Rule Not Apply. 2 Different Policies. Plaintiff’s Employer Not an Insured Under Policy Obtained by GC For GC & Premises Owner. Third party defendant LaQuila Construction obtained liability policy with National Union, insuring it & naming as additional insureds third party plaintiffs KG Land & Turner Construction. KG Land and Turner also insured under separate policy obtained by Turner & issued by Liberty Mutual. Employee of LaQuila injured in course of LaQuila’s work. Turner subcontracted excavation & foundation work to LaQuila. Third party complaint not dismissed against LaQuila as anti-subrogation rule not apply. As LaQuila not covered under Liberty Mutual policy obtained by Turner, for the benefit of Turner and KG Land, Liberty Mutual not seeking a right of subrogation against its own insured. As such, anti-subrogation does not apply. Flowers v. KG Land NY Corp., 219 AD2d 579;   

Second Dept. 1995. GC’s Policy Not Name Subcontractor as Additional Insured. GC’s Third Party Action Not Dismissed because of Anti-Subrogation rule. GC Willets retained Catapano as subcontractor to perform excavation & sewer work. Pursuant to its subcontract with Willets, Catapano obtained insurance from Transcontinental, naming Willets an additional insured. Willets obtained its own primary coverage from Continental. Catapano employee died when trench collapsed & action brought for wrongful death. Willets’ third party action against Catapano not dismissed on anti-subrogation rule as Willets’ Continental policy not name Catapano as an insured. Estate of Aprea v. willets Point Contr. Corp., 215 AD2d 708;    

 Third Dept. 

Third Dept. 2008. Court rejected argument that given Cohoes’ status as additional insured under Arcy’s CGL policy, defendant could not bring third party action because of anti-subrogation rule for reimbursement for the damages defendant paid to Arcy. As Arcy’s CGL insurance policy not cover subject loss & Cohoes not an additional insured to Arcy’s business owners’ property insurance, Cohoes cannot be considered defendant’s insured & as such, anti-subrogation rule inapplicable. Ins. Corp. of NY v. Cohoes Realty, 50 AD3d 1228;

Third Dept. 1994. Anti-subrogation rule not apply where distinct and separate insurance policies are involved. USF&G v. CNA, 208 AD2d 1163;

 Fourth Dept.  Fourth Dept. 2002. As Clarence and IPL are insured by different carriers for the risk covered herein, the public policy considerations of anti-subrogation rule not applicable. Worker fell from a ladder while engaged in renovation work at Clarence High School. Clarence commenced third-party action against IPL, plaintiff’s employer. Kazmierczak v. Town of Clarence, 292 AD2d 846;

October 15. Permanent Part of Building or Structure That Becomes Detached & Falls, Not a “Falling Object.” 240(1) Dismissed.

Comment. 240(1) generally not apply to objects that are a part of building’s permanent structure. Where the falling object was a permanent part of the building or structure, plaintiff prevails on 240(1) by establishing it was reasonably foreseeable permanent part of the building would fall.

“Reasonable Foreseeability” of Falling Permanent Part of Building.

Architect’s field report dated 7 days prior to the accident of unsafe conditions and building completely open to elements.

A NYC violation issued the date of the accident described conditions as hazardous & cited failure to carry out demolition operations in safe & proper manner.

Foreseeable risk of floor capacity overloading.

Cracks in the flooring.

Permanent Parts of Building or Structure. 240(1) Dismissed or Plaintiff’s Motion Denied.

Pipe saddle that detached from an overhead ceiling pipe assembly.

Ductwork attached to ceiling.

Ceiling.

Balcony.

Non-Permanent Parts of Building or Structure. 240(1) Not Dismissed.

Uncompleted staircase.

Flange.

First Dept.

Foreseeability of Collapse. Not Extend to Anything Other Than Permanent Structures.

First Dept. 2012. 240(1) Liability Imposed. Plaintiff, employee of subcontractor on Second Avenue Subway Tunnel Construction Project, injured while connecting pipes that were to be used to pour concrete using Tremie Concrete method. To perform such work, plaintiff stood on work platform located 8 feet above ground & was contained within metal cage known as tremie rack. This was rectangular structure 12 feet high. Court declined to extend foreseeability requirement to anything other than permanent structures that are not safety devices by their nature. Tremie rack was not in a fixed position but rather, rested upon wooden planks atop an uneven, gravel surface. Accident occurred as result of gravity related hazard created by elevation differential of tremie rack in which plaintiff was working & the tremie rack should have been secured to the ground. Plaintiff submitted testimony indicating accident would not have occurred had tremie rack been secured to the ground. Ortega v. City of NY, 95 AD3d 125;

Foreseeability. Overall Building Condition

First Dept. 2014. 240(1) Liability Imposed. Foreseeable Risk of Building Collapse. Evidence of Structural Integrity Loss.  Where collapse of permanent structure, plaintiff must establish collapse was “foreseeable,” not in a strict negligence sense, but in the sense of foreseeability of exposure to elevation-related risk. Architect’s field report dated 7 days prior to the accident of unsafe conditions and building completely open to elements. A NYC violation issued the date of the accident described conditions as hazardous & cited failure to carry out demolition operations in safe & proper manner. Such violation noted removal of interior bearing & non-bearing partitions throughout had caused floor joists to collapse from the top of building to ground level at the center. The violation also ordered all work stopped. Plaintiff’s expert engineer noted that one week before the collapse a number of timber joists were observed to be severely sagging, indicating loss of structural integrity. 240(1) imposed. Garcia v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., 113 AD3d 494;

Conflicting Testimony as to Whether Condition of Staircase Foreseeable

First Dept. 2010. Issue of Fact. Permanent Staircase. Whether collapse or failure of permanent structure gives rise to liability under Section 200 turns on whether the risk from elevation related hazard is foreseeable. While plaintiff testified building in dilapidated condition before commencement of demolition work & that the stairs which collapsed, causing the accident, were “old” & “all like destroyed,” president of company employing plaintiff testified the stairs were solid & in good condition prior to accident. Issue of fact whether collapse of permanent staircase foreseeable. Vasquez v. Urbahn Assoc., Inc., 79 AD3d 493; 

Whether Dilapidated Condition of Building Foreseeable

First Dept. 2009. Issue of Fact. Sidewalk on which plaintiff was standing, collapsed due to failure of cellar vault below it. Plaintiff instructed to straighten out metal debris containers placed on concrete sidewalk. There was testimony of failure of horizontal steel support beam that held up sidewalk slab situated over cellar vault. Steel support appeared to have been weakened by corrosion. Evidence revealed no pre-accident signs of dangerous condition visible on surface of sidewalk. To prevail on 240(1) claim from accident resulting from failure of permanent building structure, plaintiff must show failure of structure in question was a foreseeable risk of the task plaintiff performing. Even with building being demolished or in dilapidated condition, must be showing of foreseeable need for protective device of the type in 240(1). Evidence of building’s advanced state of disrepair raised issue of fact whether structural failure foreseeable. Espinosa v. Azure Holdings II, LP, 58 AD3d 287;

Floor Collapse

First Dept. 2020. Defendants’ 240(1), 200 & Common Law Negligence Claims Denied. Issue of fact whether collapse of a floor was foreseeable. Testimony of prior cracks in the flooring & plaintiff’s expert’s opinion that a proper inspection would have revealed condition of the floor as well as foreseeable risk of floor capacity overloading & resulting collapse of floor. Sinera v. Bedford-Webster LLC, 187 AD3d 621;   

Conflicting Testimony as to Whether Condition of Staircase Foreseeable

First Dept. 2010. Issue of Fact. Permanent Staircase. Whether collapse or failure of permanent structure gives rise to liability under Section 200 turns on whether the risk from elevation related hazard is foreseeable. While plaintiff testified building in dilapidated condition before commencement of demolition work & that the stairs which collapsed, causing the accident, were “old” & “all like destroyed,” president of company employing plaintiff testified the stairs were solid & in good condition prior to accident. Issue of fact whether collapse of permanent staircase foreseeable. Vasquez v. Urbahn Assoc., Inc., 79 AD3d 493; 

Whether Dilapidated Condition of Building Foreseeable of Collapsed Cellar

First Dept. 2009. Issue of Fact. Sidewalk on which plaintiff was standing, collapsed due to failure of cellar vault below it. Plaintiff instructed to straighten out metal debris containers placed on concrete sidewalk. There was testimony of failure of horizontal steel support beam that held up sidewalk slab situated over cellar vault. Steel support appeared to have been weakened by corrosion. Evidence revealed no pre-accident signs of dangerous condition visible on surface of sidewalk. To prevail on 240(1) claim from accident resulting from failure of permanent building structure, plaintiff must show failure of structure in question was a foreseeable risk of the task plaintiff performing. Even with building being demolished or in dilapidated condition, must be showing of foreseeable need for protective device of the type in 240(1). Evidence of building’s advanced state of disrepair raised issue of fact whether structural failure foreseeable. Espinosa v. Azure Holdings II, LP, 58 AD3d 287;

Permanent Part of Building

Pipe Saddle

First Dept. 2019. 240(1) Dismissed. Pipe saddle that detached from an overhead ceiling pipe assembly & struck plaintiff  was not an object requiring securing as it was a permanent part of the structure. Djuric v. City of NY, 172 AD3d 456;

Staircase Not Yet Completed. Not Yet Permanent Part of Building.

First Dept. 2017. 240(1) Liability Imposed. While plaintiff, an ironworker, was walking across an installed steel q-decking floor on construction site, 2 sheets of decking floor collapsed, causing him to fall to floor below. Even though the decking was to become a permanent part of the floor of building under construction, at the time of accident, additional work needed to be done, including pouring of concrete, before floors would be complete. Cross v. CIM Group, LLC, 154 AD3d 432;

Second Dept.

Roof Collapse Not Foreseeable

Second Dept. 2018. Plaintiff’s Summary Judgment Motion Denied. Lack of foreseeability as to safety devices needed. While engaged in renovating third floor of 3 story apartment building, plaintiff fell through roof to floor below. Plaintiff failed to show partial collapse of roof & in turn, need for safety devices, were foreseeable. Plaintiff’s testimony that he was told roof collapsed because beams on third floor ceiling had been cut constituted inadmissible hearsay. Paguay v. Cup of Tea, LLC, 165 AD3d 964; 

Permanent Part of Building. 240(1) Dismissed As No Foreseeability of Collapse.

Ductwork

Second Dept. 2023. 240(1) Dismissed. Building Ductwork. Plaintiff, a laborer, tasked with clearing debris from first floor of building being demolished. Ductwork attached to first floor ceiling became detached on one end, falling 18 inches, causing dirt & pebbles to fall into plaintiff’s left eye. The ductwork, which was part of preexisting building structure & not being actively worked on at the time of accident, not an object requiring securing for purposes of the job. To extent partially demolished condition of building may have created greater risk of objects falling, not sort of risk of 240(1) protection. Cruz v. 451 Lexington Realty, LLC, 218 AD3d 733;  

Ceiling

Second Dept. 2013. 240(1) Dismissed. Ceiling a Permanent Structure of Building.  While plaintiff standing on A-frame ladder painting a ceiling, large section of ceiling gave way, falling on plaintiff, causing a fall from ladder. As ceiling part of permanent structure of building, not a falling object being hoisted or secured, 240(1) dismissed. Flossos v. Waterside Redevelopment Co., LP, 108 AD3d 647;

Balcony

Second Dept. 2005. Balcony. 240(1) dismissed against owners where condominium balcony from which plaintiff was discarding debris into a dumpster on the ground, collapsed. A balcony is not a scaffold, but rather a permanent appurtenance to a building. Caruana v. Lexington Vil. Condominiums at Bay Shore, 23 AD3d 509;

Metal Grating Affixed to Ceiling

Second Dept. 2009. Issue of Fact Whether Ceiling & Metal Grating Required to be Secured.  Plaintiff engaged in plumbing work at building where demolition & renovation ongoing. Prior to plaintiff starting his work, interior walls & dropped ceiling of room were demolished by defendant’s workers so as to allow for complete renovation & reconstruction of room. Such work by defendant’s workers revealed actual ceiling of the room & exposed a skylight covered by metal grating. Such metal grating affixed to actual ceiling was permanent part of the building. While standing on ladder & performing plumbing work in that room, metal grating became detached from the ceiling, causing it to fall & knock plaintiff off the ladder. Issue of fact whether the ceiling, including the grating, which were permanent parts of the building, were required to be secured by a hoisting or securing device of the type enumerated in 240(1).Ravinov v. Popeye’s, 68 AD3d 1085;  

Drainpipe

Second Dept. 2009. Issue of Fact. Plaintiff installing a vertical line of drainpipe on exterior of 6 story apartment building. Plaintiff working 8 feet above ground, using metal brackets to affix pipe to building’s brick exterior. One bracket which had been attached near top of building became dislodged & fell, striking plaintiff. 240(1) generally not apply to objects that are a part of building’s permanent structure. Marin v. AP-Amsterdam 1661 Park LLC, 60 AD3d 824;

Permanent Part of Building Exception

Fire Escapes

First Dept. 2009. 240(1) Liability Imposed. Plaintiff fell 2 stories when fire escape on which was working detached from the building & fell to the ground. 240(1) violation as fire escape was functional equivalent of a scaffold & failed to provide adequate protection for elevation related work. It was necessary for plaintiff to stand on exterior fire escape to remove a window on third floor where he was engaged in demolition work & where ceiling & floor between second & third floors already removed. Fact that fire escape was a permanent rather than temporary structure not warrant different outcome. Gomez v. City of NY, 63 AD3d 511;     

Not Permanent Part of Building

Flange

Second Dept. 2018. 240(1) Not Dismissed. Falling Flange Used in Construction Not Permanent Part of Building. Accident occurred when plaintiff & coworker installing weld neck flange, which is a fitting to connect a valve or piece of pipe to existing piece of pipe. Plaintiff used ascending & descending platform called scissor lift to raise the flange, which weighed 80 pounds, to height of the pipe, 16 feet above floor. Plaintiff began process of temporarily securing flange to pipe by making the first two of four small welds called tack welds. Plaintiff waited few minutes for two tack welds to cool down & then lowered scissor lift a few inches to inspect flange to determine whether it was level. Determining a grinder was needed to level the flange, they lowered scissor lift to floor. At that point, tack welds broke, causing flange to fall, striking plaintiff.  Defendants failed to establish flange part of permanent structure of building & not a falling object under 240(1). Evidence was flange only temporarily secured to pipe by 2 tack welds when it was determined a grinder was needed to level the flange. Carlton v. City of NY, 161 AD3d 930;

No Foreseeability of Dangerous Condition of Permanent Part of Building. 240(1) Dismissed or Plaintiff’s Motion Denied.

Floors

Second Dept. 2015. No Foreseeability of Collapse of Basement Subfloor. 240(1) Dismissed. In order for liability to be imposed under 240(1), there must be a foreseeable risk of injury from elevation-related hazard as defendants are liable for all normal & foreseeable consequences of their acts. Plaintiffs failed to demonstrate partial collapse of a small section of basement subfloor and, also, the need for safety devices from elevation-related hazard, were foreseeable. Carrillo v. Circle Manor Apts., 131 AD3d 662;

Second Dept. 2011. Plaintiff’s Motion for 240(1) Denied. Collapsing Permanent Floor Not Foreseeable.  Demolition laborer was removing debris from third floor of a building when coworker struck a wall with a lift he was operating, causing part of wall to fall to the floor, causing the floor to collapse. Plaintiff fell 12 feet to floor below. Although collapse of permanent floor may give rise to 240(1) liability where circumstances are such there is foreseeable need for safety devices, plaintiff failed to show collapse of the floor was foreseeable. As such, plaintiff’s motion denied. Martins v. Board of Ed. Of City of NY, 82 AD3d 1062;

Second Dept. 2007. 240(1) Dismissed. Plaintiff Not Raise Foreseeability Issue. While plaintiff preparing to take down a brick wall using a jackhammer, basement floor he was standing on collapsed, causing a fall into hole. Although accident resulting from collapse of a floor may give rise to liability under 240(1) where the circumstances are such of a foreseeable need for safety devices, plaintiff failed to raise such issue of fact. Collapse of basement floor was not a risk giving rise to enumerated safety devices of 240(1) but was rather, a separate, unrelated hazard. Balladares v. Southgate Owners Corp., 40 AD3d 667; 

Fourth Dept. Fourth Dept. 2018. Issue of Fact Whether Lintel Permanently Attached to The Door. While attempting to install a door frame in exterior doorway, frame became stuck & when plaintiff tried to free it, steel lintel (horizontal support across the top of a door or window.) fell on his head. Lintel, 4 ½ feet long, weighing 50 pounds. Evidence failed to establish whether lintel permanently secured to building with mortar or was temporally installed on top of the doorframe. Robinson v. Spragues Wash. Sq., LLC, 158 AD3d 1318;

October 14. Construction Manager Defenses to 240(1) Action.

CONSTRUCTION MANAGER (CM). Not Statutory Agent of Owner of GC. Not Supervise or Control Injury Producing Work. 240(1) Dismissed.

Comment. CM not liable where,

Lack of supervision & control shown by contract terms.

Subcontractor had completed its work at time of worker’s accident.

Mere weekly visits to the jobsite lasting no more than 3 hours.

Subcontractor not create dangerous condition.

First Dept.

First Dept. 2024. TDX, the CM on project, not statutory agent conferring liability under Labor Law, as TDX not have sufficient supervisory control over injury producing work. TDX sustained its burden of demonstrating lack of sufficient authority to supervise or control injury causing work through documentary evidence that such authority was specifically withheld by terms of contract between the owner & TDX. TDX also submitted evidence of general supervisory responsibilities it did  assume & which it performed & such general supervisory tasks insufficient to impose liability. Diaz v. P&K Contr. , Inc., 224 AD3d 405;  

First Dept. 2024. Plaintiff injured while cleaning a sliding glass door in office on 15^th floor of a building when a piece of the metal door frame fell & struck plaintiff. Hudson was CM for interior fit-out project on building’s 14^th & 15^th floors. Hudson neither owned, occupied, controlled, or made special use of accident location. Also, when accident occurred, Hudson completed its work on 15^th floor. Rodriguez v. Miller Plumbing & Heating, Inc., 223 AD3d 635;

First Dept. 2013. Gilbane, the CM, was not liable under Labor Law for plaintiff’s accident as Gilbane did not direct, control or supervise plaintiff’s work. No evidence to indicate Gilbane was anything other than typical construction manager & therefore not agent of Dormitory Authority of NY, the building owner. Rodruguez v. Gilbane/TDX Joint Venture, 102 AD3d 484;

First Dept. 2005. 240(1) Dismissed. Ladder provided to plaintiff to cut down temporary feeder cable was not adequate safety device. Jekmar, the CM, hired by premises owner, established it did not have requisite supervision and control over injury producing work and as such, granted summary judgment on 240(1) claim. That Jekmar was indemnified by a co-defendant under the contract between them for claims arising out of Jekmar’s performance had no logical bearing on whether Jekmar exercised such supervision and control. Osario v. BRF Constr. Corp., 23 AD3d 202;

Second Dept.

Second Dept. 2016. A party is deemed to be an agent of owner or GC under Labor Law when it has supervisory control & authority over the work being done where a plaintiff is injured. It is not a defendant’s title that is determinative, but the amount of control or supervision exercised. CM Dynatec, demonstrated it lacked authority to supervise or control plaintiff’s work. Dynatec offered evidence that its role at the worksite was to ensure compliance with design plans through weekly visits lasting no more than 3 hours. Vazquez v. Humboldt Seigle Lofts, LLC, 145 AD3d 709;   

Second Dept. 2008. Plaintiff fell from a ladder. Plaintiff failed to establish that Sullivan & Nickel, the CM, was liable under 240(1) as an agent of the owner with ability to control injury producing work. Reaber v. Connequot Cent. School Dist. No. 7, 57 AD3d 640;

Fourth Dept.

Fourth Dept. 2009. 240(1) Dismissed Against CM. Plaintiff fell from ladder while performing electrical work at a mall. CM had no 240(1) liability as it established it was not agent of owner as owner had not delegated it authority to supervise & control plaintiff’s work. Rowland v. Wilmorite, Inc., 68 AD3d 1770; 

Fourth Dept. 2007. Not a Statutory Agent. Teacher caught her foot in depression in school parking lot. At the time, addition to school was being constructed. CM established it did not create parking lot depression & that it lacked actual & constructive notice of such defect. CM further established it did not assume the School District’s responsibility of maintaining the parking lot & that its general power to supervise, coordinate and inspect the work did not constitute control to render it liable for negligence of subcontractor. Barends v. Louis P. Ciminelli Constr. Co., Inc., 46 AD3d 1412;

Fourth Dept. 2005. Plaintiff’s motion against Kircher Construction, CM, was denied as plaintiff’s own proof raised issue of fact whether Kircher had sufficient authority over construction project to be held liable for the 240(1) violation. Wirth v. ELO, Inc., 21 AD3d 1346;

CM Not Statutory Agent Pursuant to Contract Terms.

No Supervision or Control Over Injury Producing Work.

Sample Contract Language.

Construction Manager shall not have control over or charge of and shall not be responsible for construction means, techniques, sequences or procedures, or for safety precautions and programs in connection with the work of each of the Contractors, since these are solely the Contractor’s responsibility.

Second Dept.

Second Dept. 2013. Not a CM. Although a construction manager is generally not considered a contractor responsible for safety of workers at construction site, it may become responsible if delegated authority and duties of GC, or if functions as agent of premises owner. Entity is deemed to be agent of owner of GC under Labor Law when it has supervisory control & authority over injury producing work. CM, Turner Construction, through construction documents and agreements and deposition testimony of parties, showed it was not delegated authority over work being performed. McLaren v. Turner Constr. Co., 105 AD3d 1016; 

Second Dept. 2011. Section 241(6) Dismissed. Although a CM is generally not considered a contractor responsible for the safety of the workers at construction site pursuant to Labor Law Sections 200 and 241(6), it may nonetheless become responsible if it has been delegated the authority & duties of a GC, or if it functions as agent of the owner of the premises. Entity deemed to be agent of owner or GC under the Labor Law when it has supervisory control & authority over the work being done when a plaintiff is injured. To impose such liability, defendant must have  authority to supervise or control injury producing work so as to enable it to avoid or correct unsafe condition. It is not defendant’s title that is determinative, but the degree of control or supervision exercised. Role of JMB was only one of general supervision, which is insufficient to impose liability under the Labor Law.  Paragraph 2.3.15 of the agreement provided that “Construction Manager  shall not have control over or charge of and shall not be responsible for construction means, techniques, sequences or procedures, or for safety precautions and programs in connection with the work of each of the Contractors, since these are solely the Contractor’s responsibility.”  Rodriguez v. JMB Architecture, LLC., 82 AD3d 949;

Second Dept. 2007. CM No Authority Over Injury Producing Work. Agreement between Builders Group and St. Anns specifically provided CM “shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the contractors, since these are solely the contractor’s responsibility.” In carrying out its duties, Builders Group did not assume, & could not have assumed, responsibility for work of TAP, since Builders Group unaware that Best Choice subcontracted taping work to TAP. Plaintiff & TAP’s supervisor testified that plaintiff took his instructions from TAP and no other party. Also, no evidence Builders Group had any control or supervisory role over the work of plaintiff as to enable it to prevent any unsafe condition, or that Builders Group provided defective ladder or had notice of defects. Delahaye v. Saint Anns School, 40 AD3d 679;

Third Dept.

Third Dept. 2015. Section 240(1) Dismissed. While working at a school, window panel suddenly dislodged, slid down its frame & pinned plaintiff’s right shoulder between window panel & empty space in the window frame. Sano-Rubin was CM for various construction projects occurring throughout the school district pursuant to a contract with school district. Such contract stated that Sano-Rubin “shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work of each of the contractors.” Also, if Sano-Rubin “observes any safety program or action at the site which it believes is improper or in violation of applicable law or rules, it shall immediately advise the owner. Witnesses confirmed Sano-Rubin had no authority to direct or control injury producing work. Larkin v. Sano-Rubin Constr. Co., 124 AD3d 1162;   

Third Dept. 2009. Section 240(1) Dismissed. Plaintiff’s employer was subcontractor responsible for removing part of a roof on school building undergoing renovations. CM not liable under 240(1) as agent of owner unless the manager has the authority to direct, supervisor control the work bringing about the injury. Bovis did not have such authority. Contract between Bovis and school district stated Bovis “shall not have control over or charge of and shall not be responsible for construction means, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the Contractors, since these are solely Contractors’ responsibility.” Only way for Bovis to correct safety violations was to inform prime contractor, who would address the problem. Bovis lacked authority to be liable under 240(1). Kindlon v. Schoharie Cent. School Dist., 66 AD3d 1200;

October 12. Brain Injury. Pain & Suffering Sustained Awards. (Also see September 9, 2024 post for lumbar surgery awards.)

First Dept.

First Dept. 2021. Perez v. Live Nation Worldwide, Inc., 193 AD3d 517;

Trial Court. Supreme Court, Bronx County.

Traumatic brain injury. Encephalomalacia; cerebral atrophy; traumatic epilepsy; cognitive deficits in attention; processing speed, memory, visual inspection.

Jury Award. $10.5 million for past pain & suffering. $75,250,000 for future pain & suffering over 43 years.

Appellate Court reduced award for past pain & suffering to $5 million. Reduced award for future pain & suffering to $15 million.

First Dept. 2021. Hedges v. Planned Sec. Serv. Inc., 190 AD3d 485;

Trial Court. Supreme Court, NY County.

Traumatic brain injury. Plaintiff sustained extensive organic brain damage, which is something more than TBI. There was actual brain shrinkage or atrophy.

Jury Award. $29 million jury award for future pain & suffering reduced by trial court to $14.5 million.

Appellate Court decreased future pain & suffering award to $10 million.

First Dept. 2016. Andino v. Mills, 135 AD3d 407;

Trial Court. Supreme Court, Bronx County.

Motor vehicle accident.

Brain injury resulting in permanent cognitive impairment. 3 surgeries to her knees.

Jury Award. $600,000 for past pain & suffering. $23 million for future pain & suffering over 37 years.

Appellate Court reduced award of future pain & suffering to $2.7 million.  

First Dept. 2013. Lindenman v. Kreitzer, 105 AD3d 477;

Trial Court. Supreme Court, NY County.

Brain injury. No surgery. Able to drive & play tennis.

Jury Award. $1.5 million for past pain & suffering. &4 million for future pain & suffering.

Appellate Court reduced award for past pain & suffering to $500,000. Reduced future pain & suffering to $750,000.  

First Dept. 2011. Godfrey v. GE Capital Auto Lease, Inc., 89 AD3d 471;

Trial Court. Supreme Court, Bronx County.

College age plaintiff suffered brain injury. MV accident.

Jury Award. $3,332,000 for future pain & suffering.

Appellate Court. Reduced award for future pain & suffering to $2.5 million.

First Dept. 2011. Angamarca v. NYC Partnership Hous. Dev. Fund, Inc., 87 AD3d 206;

34 year old plaintiff fell from the roof of a townhouse while engaged in carpentry work.

Traumatic brain injury; multiple fractures of vertebrae; rib fractures; leg fractures & wrist fracture. 6 weeks in hospital. He underwent a tracheotomy to ease his breathing.  Surgery was performed to remove contused portion of the brain & portion of his skull to reduce pressure.  Multiple fractures of vertebrae resulted in increased kyphosis (curvature) of the spine, requiring surgery. Such surgery consisted of spinal fusion of the vertebrae and insertion of plates, nuts, screws and rods into plaintiff’s back. Plaintiff was left with one leg shorter than the other, a rounded spine, malunion in his wrist and an indentation in his face from a craniectomy.

Jury Award. $100,000 for past pain & suffering. $1 million for future pain & suffering over 40 years.

Appellate Court increased award to $1.5 million for past pain & suffering. $3.5 million for future pain & suffering.    

First Dept. 2009. Sadhwani v. NYC Tran. Auth., 66 AD3d 405;

Trial Court. Supreme Court, NY County.

Brain injury.

Jury Award. $1.9 million for past & future pain & suffering over 10 years.

Appellate Court affirmed jury award.

First Dept. 2009. Hernandez v. Vavra, 62 AD3d 616;

Trial Court. Supreme Court, NY County.

Traumatic brain injury termed a subarachnoid hemorrhage.

Jury Award. $1 million for past pain & suffering. $1.75 million for future pain & suffering over 15 years.

Appellate Court affirmed jury award.

First Dept. 2008. Cintron v. NYC Tr. Auth., 50 AD3d 466;

14 year old struck by subway car.

Trial Court. Supreme Court, Bronx County.

Traumatic brain injury & hip fracture. Cognitive impairments as significant deficits in perceptual organization, processing speed and memory; residual weakness in left hand.

Jury Award. $20 million for past and future pain & suffering.

Appellate Court reduced past pain & suffering award to $4.75 million.

First Dept. 2006. Paek v. City of NY, 28 AD3d 207;

Trial Court. Supreme Court, NY County.

Tripped over metal spike which was not visible at night.

Brain injury resulting in permanent cognitive impairment affecting her memory, concentration, organizational ability & emotional response.

Jury Award. $5 million for future pain & suffering over 40 years.

Appellate Court reduced award for future pain & suffering to $3 million.

First Dept. 2005. Chelli v. Banle Assoc., LLC, 22 AD3d 781;

Trial Court. Supreme Court, Queens County.

Plaintiff’s neuropsychologist testified brain injury rendered plaintiff permanently & totally disabled.

Jury Award. $3.5 million for future pain & suffering.

Appellate Court reduced future pain & suffering award to $2.5 million.  

Second Dept.

Second Dept. 2020. Xiaoen Xie v. Park Place Estate, LLC, 181 AD3d 627;

Supreme Court, Queens County.

Construction site accident.

Spinal fracture requiring fusion surgery & head injury involving intracranial hemorrhage.

Jury Award. $75,000 for past pain & suffering. $250,000 for future pain & suffering.

Appellate Court affirmed jury award. 

Second Dept. 2016. Alcantara v. NYS Tr. Auth., 140 AD3d 808;

Venue. Supreme Court, Kings County.

Trial Court Judge. Judge Velasquez

69 year old. Fell down stairs at subway station.

Traumatic brain injury; comminuted left acetabular fracture; post-traumatic seizure disorder.

Jury Award. $5 million for past pain and suffering. $11 million for future pain and suffering over 16 years.

Appellate Court reduced award for past pain & suffering $2 million. Reduced future pain & suffering to $3 million.

Second Dept. 2015. Turturro v. City of NY, 127 AD3d 732;

Trial Venue. Kings County. Judge Kramer.

12 year old riding a bicycle struck by a car.

Coma for 5 months. Extensive skull fractures; subdural hematomas and intercranial hypertension. Fractures to his ankle and hip & collapsed lung. Numerous surgeries & developed a seizure disorder.  Brain injuries permanently diminished infant plaintiff’s cognitive & motor functioning.

Jury Award. $6 million for past pain & suffering. $15 million for future pain & suffering.

Appellate Court reduced award past pain & suffering to $3 million. Reduced future pain & suffering to $7 million.  

Second Dept. 2011. Belt v. Girgis, 82 AD3d 1028;

Trial Court. Supreme Court, Queens County.

Pedestrian struck by vehicle.

Coma for 3 weeks; intracranial hemorrhage to left parietal hemisphere and left frontal lobe intra-axial hematoma with right temporal bone fracture. Left femoral fracture. Right clavicular fracture. Fracture of right medial malleolus. Fracture of pubic-rami.

Jury Award. $5 million for past pain & suffering. $10 million for future pain & suffering.

Appellate Court. Reduced award for past pain & suffering to $2 million. Reduced award for future pain & suffering to $3 million.     

Third Dept.

Third Dept. 2010. Garrison v. Lapine, 72 AD3d 1441;

Trial Court. Supreme Court, Ulster County.

Traumatic brain injury.

Jury Award. $500,000 for past pain & suffering. $2 million for future pain & suffering for a period of 31 years.

Appellate Court affirmed jury award.

Third Dept. 2009. Doviak v. Lowe’s Home Ctrs., Inc., 63 AD3d 1348;

Trial Court. Supreme Court, Ulster County.

Fell 22 feet from roof to ground.

35 years old. Irreversible brain damage. Total loss of sight, partial loss of his senses of smell & taste and significant loss of hearing.  Impaired mental functioning.

Jury Award. $200,000 for past pain & suffering. $800,000 for future pain & suffering for 32 years.

Trial Court. Increased past pain & suffering to $1.2 million. Increased future pain & suffering to $2.9 million. 

Appellate Court. Increased future pain & suffering to $3.9 million.

Third Dept. 2009. Popolizio v. County of Schenectady, 62 AD3d 1181;

Trial Court. Supreme Court, Schenectady County.

56 year old. Traumatic brain injury.

Jury Award. $1 million for past pain & suffering. $3.6 million for future pain & suffering over 23 years.

Trial court reduced award for past pain & suffering to $350,000 & reduced award for future pain & suffering to $1.25 million.

Appellate Court increased future pain & suffering $1.75 million. 

Third Dept. 2001. Auer v. State, 289 AD2d 626;

Trial Court. Court of Claims.

18 years old. MV accident.

Traumatic brain injury causing plaintiff to experience quadriplegia & significant cognitive defects.   

Appellate Court. Increased future pain & suffering award to $1.5 million.

Third Dept. Tassone v. Mid-Valley Oil Co., Inc.,

Trial Court, Supreme Court, Columbia County.

22 year old suffered fall from roof of a building.

Severe closed head injury and traumatic encephalopathy.

Jury Award. $1,345,570 for past pain & suffering. $1 million for future pain & suffering.

Appellate Court affirmed jury award.  

October 11. Subcontractor Obligated to Indemnify Owner/GC Where It Subcontracted Out The Work. Accident Still Arose From Subcontractor’s “Performance of The Work.”

Comment. Language ofindemnification clauses below determined subcontractor remained obligated to indemnify owners & GCs even where such subcontractor subcontracted out the work to another subcontractor.

Where a subcontractor subcontracts out the work, and accident arose from such subcontracted work, the accident still arose from the work of the subcontractor that contracted to provide indemnification of owner or GC. Subcontractor’s indemnity obligation remains in effect even where it has subcontracted out the work. The indemnification language, “in connection of the work pursuant to purchase order,” held that indemnification obligation remains even where work subcontracted out to another subcontractor.

Indemnification clause language may include “sub-tier” contractors, obligating indemnity obligation for work subcontracted out to another subcontractor.

First Dept.

First Dept. 2022. First Dept. 2022. Plaintiff fell from ladder that tilted after a leg of ladder broke through temporary Masonite covering on surface of roof. Owner sought indemnification from Penava. Structure Tone, the GC, hired PJ Mechanical to install building’s HVAC system. PJ Mechanical subcontracted such installation to Penava. Plaintiff employed by Penava. Owner & GC Structure Tone entitled to indemnification from PJ Mechanical because the accident arose out of its subcontract work. Quiroz v. NY Presbyterian/Columbia Univ., 202 AD3d 555;   

First Dept. 2021. Indemnification Language, “In Connection of The Work Pursuant to Purchase Order” Specifically Included Work of Subcontractors. FRP’s interpretation of indemnity clause as only being triggered where FRP performs the work would render that portion of the provision making FRP responsible for its subcontractors without force of effect. Indemnification provision is triggered whether the work was being performed by FRP or its subcontractors & thus triggered here. Scekic v. SL Green Realty Corp., 196 AD3d 420;

First Dept. 2021. Subcontracted Work. Contract obligated Koenig to indemnify Sciame for all claims which arise out of or are connected with … the performance of” that contract. As plaintiff’s accident arose out of his work for Atlantic, with which Koenig sub-subcontracted to perform, plaintiff’s accident necessarily arose out of work that Sciame subcontracted with Koenig to perform, thus triggering Koenig’s contractual duty to indemnify Sciame. Ging v. FJ Sciame Constr. Co., 193 AD3d 415;

First Dept. 2020. Subcontractor Work. Pursuant to its contract, Empire agreed to indemnify Pen & Brush for damages, “arising from any act, omission, negligence, potential claims and losses” of Empire or its subcontractors “during the performance of the Contract.”  Empire’s indemnification obligation was triggered where plaintiff’s injuries arose from the act of Empire’s subcontractor, Lough Allen, in dismantling the scaffold & a finding of negligence not required. Clarke v. Empire Gen. Const. & Painting Corp., 189 AD3d 611; 

First Dept. 2015. Subcontractor. Indemnification Where Work Subcontracted. Owner awarded contractual indemnification from contractor Integrated pursuant to provision of contract between entities for claims arising from the performance of the work, given that Integrated subcontracted the work to Rockledge, which employed plaintiff & other workers involved in accident. Bonaerge v. Leighton House Condominium, 134 AD3d 648;

First Dept. 2012. Plaintiff standing on a ladder, unassisted, attempting to pull a large piece of sheetrock in the ceiling of an apartment. Reaching for a screw gun strapped to his side, ladder collapsed, causing a fall. CPS owned the building. Defendant Slosberg retained DSA, plaintiff’s employer, to renovate & combine 2 apartments. CPS entitled to contractual indemnification from Slosbergs for “claims for damage to persons or property suffered as a result of the alterations.” As it was undisputed plaintiff’s accident arose from the alterations, CPS entitled to be indemnified. Motion court dismissed Section 200 & common law negligence claims against CPS. Dwyer v. Central Park Studios, Inc., 98 AD3d 882; 

First Dept. 2012. Tenant retained Shawmut as construction manager/GC to renovate premises for use as retail store. Shawmut subcontracted with Imperial to furnish & install interior woodwork. Imperial subcontracted with Wood Pro Installers which employed plaintiff. Imperial indemnified Shawmut for “any and all claims arising out of or resulting from any work of and caused by any negligent act or omission of Imperial or those employed by it or working under those employed by it at any level.” Such indemnification clause includes claims against Imperial’s sub-subcontractor Wood Pro. Lipari v. AT Spring, LLC, 92 AD3d 502; 

Second Dept.

Second Dept. 2010. Sub-Tier Contractor. Plaintiff fell from makeshift scaffold & brought action against GC, Genovesi, Reale Masonry, subcontractor retained by Genovesi to perform carpentry & framing work. Plaintiff employed by IP Construction, which Reale Masonry retained to perform framing work for the project. Indemnification provision required Reale to indemnify Genovesi “from and against all claims, damages, losses and expenses … arising out of or resulting from the performance of the work, provided that any such claim, damage, loss or expense  is … caused in whole or in part by any neglect, act or omission by the subcontractor, any sub-tier contractor or anyone directly or indirectly employed by him or anyone else for whose acts he may be liable.” Genovesi entitled to indemnity from Reale as accident arose out of subcontracted work & Reale’s sub-tier contractor, IP Construction, instructed plaintiff to build a scaffold that was inadequate. Tapia v. Mario Genovesi & Sons, Inc., 72 AD3d 800;

Second Dept. 2008. GC Pav-Lak retained Mid Island Steel to fabricate & erect steel for project. Plaintiff employed by Ranger Steel, retained by Mid Island Steel to erect & install steel for project. Mid Island Steel was to, pursuant to contract, indemnify Pav-Lak for any “claims, suits, actions, damages, losses … arising out of or resulting from performance of the [subcontracted] Work” that Mid Island Steel performed to the extent “caused in whole or part by” Mid Island Steel or “anyone directly or indirectly employed by Mid Island Steel or anyone for whose acts they may be liable.” As plaintiff’s injuries arose out of performance of subcontracted work, Pav-Lak entitled to contractual indemnification. Giangarra v. Pav-Lak Contracting, 55 AD3d 869;

Fourth Dept. Fourth Dept. 2013. Subcontractor Obligated to Indemnify GC Even Where Subcontracted Out The Work. Although plaintiff could have been connected to steel lifeline at location where he fell, he was moving to new work area & could not reach that area while connected to lifeline. However, issue of fact whether plaintiff had good reason for disconnecting from lifeline or whether such action sole proximate cause of accident. Indemnification provision in subcontract between GC & subcontractor Guard evinced clear intent that Guard indemnify GC for damages arising out of the work subcontracted to Guard, even where Guard subcontracted out the work. Bellreng v. Sicoli & Massaro, Inc., 108 AD3d 1027;

October 10. Subcontractor Work Performed Outside Scope of Contract. Indemnification Denied.

Comment. If accident occurs outside the scope of the subcontractor’s contractual scope of work, owner/GC’s claim for indemnification denied.  

Subcontractor stopped working at site when accident occurred & accident not result of subcontractor’s work.

Contractual requirement for written modifications of the scope of work may be waived when conduct of parties demonstrates indisputable mutual departure from the written agreement & changes were requested by plaintiff & executed by defendant.

First Dept.

First Dept. 2021. Work Not Within Scope of Subcontractor’s Work. GC’s indemnity claim against subcontractor dismissed. Subcontractor All Safe’s motion dismissing contractual indemnification claim by GC, Dolner, granted. All Safe obligated to indemnify Dolner for claims “arising out of or in connection with or as a consequence of the performance or non-performance of All Safe’s Work.” Plaintiff’s expert stated All Safe had duty to even out uneven surface underneath platform. However, whether to smooth out uneven ground was not within subcontractor All Safe’s work, but rather the GC, Dolner. As All Safe not responsible for leveling ground underneath platform, the accident not arise from All Safe’s work. Vasquez v. City of NY, 200 AD3d 482;

First Dept. 2017. Issue of fact exists whether work plaintiff performing when accident occurred within scope of Spectrum’s work. Spectrum’s contract unclear as to whether window frame plaintiff was painting when accident occurred included in the scope of work. Fidanza v. Bravo Brio Rest. Group, Inc., 146 AD3d 594; 

First Dept. 2015. Defendant Completed Its Work Before The Accident. Moving defendants seek indemnification from Petrocelli & third-party defendant RSR for death of Mr. Smith, principal of RSR, a subcontractor hired by Petrocelli, when he fell from roof of building under construction. Mr. Smith’s death may have been a suicide. Even giving indemnity provision broadest possible construction, it cannot be said such loss arose out of RSR’s work on the project, especially with testimony RSR had ceased working there before the day of incident. Smith v. Hunter Roberts Constr. Corp., 127 AD3d 647;  

First Dept. 2010. Construction of “catch-all” outside of plans. Indemnification Denied. Purchase order, engineer’s plans & related invoice all reference only construction of the sidewalk bridge, making no reference to additional construction of 8-foot “catchall.” Deposition testimony of parties disagreed as to whether construction of catchall discussed as part of the job. Court affirmed jury’s verdict that entity owed no indemnification as to damages resulting from catchall construction. McDonald v. 450 W. Side Partners, LLC, 70 AD3d 490;   

Second Dept.

Written Modifications to Scope of Work

Second Dept. 2022. Issue of Fact Whether Work Performed to Garage Within Contract’s Scope of Work. Plaintiff employed by NJM Construction & working on exterior of detached garage when he either fell from scaffold surrounding garage or from a ladder. Indemnification provision may not apply to work performed outside of contractual scope intended by the parties. However, contractual requirement for written modifications of scope of work may be waived when conduct of parties demonstrates indisputable mutual departure from written agreement & changes requested by plaintiff & executed by defendant. Scope of NJM’s work as set forth in contract limited to framing & exterior trim for the house & no mention of garage. Changes to contract required in written change order & no evidence such change order issued. However, issue of fact whether waived where NJM requested to perform work on exterior of garage & NJM executed such work. Also, NJM’s work on garage was within the scope of its “trade,” which could potentially bring accident within scope of indemnification provision. Indemnification provision stated, claims caused by breach of Contract, its negligence … in the performance of contract and/or NJM’s trade. Torres v. Accumanage, LLC, 210 AD3d 718;  

Second Dept. 2016. Accident Not Caused by Contractor’s Work. Indemnification Denied. Plaintiff fell while descending interior staircase because of insufficient lighting in building owned by Decker. Defendant Athens Electric entered into contract with Decker to perform certain electrical work in building & on day of accident, disconnected electricity to common areas to perform electrical work in connection with installation of cooling tower. Decker entered into separate contract with Perfectaire Co. to install cooling tower. Building owner Decker’s contractual indemnification claim against Perfectaire dismissed as Perfectaire’s work not include electrical work performed by Athens Electric. Perfectaire established Athens Electric not its subcontractor. Indemnity clause not triggered as plaintiff’s accident not arise or result from Perfectaire’s work. Staron v. Decker, 135 AD3d 846;    

Second Dept. 2015. Area of Stucco Work Performed by Plaintiff Not Part of Contracted Work. Indemnification Dismissed. While Spectrum’s contract relating to the project required it to indemnify owner & construction managers against all liability arising out of or connected with performance of Spectrum’s work under the contract, Spectrum showed indemnification clause inapplicable as plaintiff was injured applying stucco to the building roof, which was outside scope of painting work to be performed by Spectrum under the contract. Lombardo v. Tag Ct. Sq., LLC, 126 AD3d 949;

No Indemnification Obligation. Accident Not Occur on Demised Premises.

Second Dept. 2010. Lease indemnification clause provided “shall not be liable for any injury to any person on the demised premises or any part thereof.” Plaintiff’s accident occurred 100 feet away from demised premises as he prepared cement for delivery to demised premises. As accident not occur on demised premises, subcontractor not obligated to indemnify premises owner. D’Alto v. 22-24 129^th St., LLC, 76 AD3d 503;

Third Dept.

Third Dept. 2018. Indemnification Allowed. Accident Occurred Within Scope of Change Order. Young contended Mercer not entitled to conditional contractual indemnity as repair work leading to accident outside scope of contract, which was limited to roof replacement & made no provision for repairs & because no written change order modifying scope of work was executed as contract required.  However, indemnification provision may apply to injuries caused by work performed outside of the contractual scope intended by the parties.  Contractual requirement for written modifications of scope of work may be waived when conduct of parties demonstrates indisputable mutual departure from written agreement & changes clearly requested by plaintiff & executed by defendant.  Evidence showed flexible practice by which subcontractors sometimes performed repairs not specified in contract sans submitting written change order. Foreman testified he did not submit a change order for such repair work & his company did not receive additional payment. Burhmaster v. CRM Rental Management, Inc., 166 AD3d 1130;

Fourth Dept.

Fourth Dept. 2018. Indemnification Denied. Roofing Work Outside Scope of Contract. The “Work” defined in contract addendum as those services “more fully described in the contract, invoice, purchase order or other attached document referencing the Contractor’s work and services to be provided, which is incorporated by reference herein and made a part thereof.” As such plain language of addendum limits indemnification agreement to only certain work of Sattora, i.e., work for which defendants had written agreement or record that was contemporaneously executed with addendum. As no written contract or other record executed for Sattora’s performance of relevant roofing work, no valid indemnification agreement arising out of such work. Provens v. Ben-Fall Dev., LLC, 163 AD3d 1496; Fourth Dept. 2005. Physical Altercation Outside Scope of Indemnification. Third party defendant, Leone Construction moved to dismiss the third party action for contractual indemnification brought by the GC, Baker Heavy Highway. Baker’s employee was not acting in furtherance of Baker’s business when he assaulted Leone’s employee.  Baker’s employee attempted to punch the Leone employee. Subcontract obligated Leone to defend & indemnify Baker against any claim for personal injury caused by, resulting from, arising out of or occurring in connection in connection with the execution of Leone’s work. Leone had no duty of contractual indemnification to Baker. Language of indemnity agreement should not be extended to include damages which are neither expressly within its terms nor of such character that it is reasonable to infer that they were intended to be covered under the contract. As plaintiff not acting within scope of his employment by assaulting the Leone employee, no contractual duty of Leone to indemnify Baker. Zanghi v. Laborers’ Inter. Union of North Amer., 21 AD3d 1370;    

October 8. Hard Hat Rule. Industrial Code 23-1.8(c) in 241(6) Action.

23-1.8(c). Protective apparel. Head protection. Every person required to work or pass within any area where there is a danger of being struck by falling objects or materials or where the hazard of head bumping exists shall be provided with and shall be required to wear an approved safety hat. Such safety hats shall be provided with liners during work in areas or at such times where the temperature is below 55 degrees Fahrenheit.

First Dept. 2024. In Sandoval-Morales v. 164-20 N. Blvd. LLC, 2024 NY Slip Op 04933, accident occurred while plaintiff was washing paint buckets in a slop sink in a janitor’s closet on the first floor of a building. There was a ladder in the closet and tiles were missing in the closet’s ceiling. An object identified as an electrovalve, fell through missing tiles in the ceiling, striking plaintiff in the head. However, a plumber testified he left the electrovalve on top of the ladder in the closet. The plumber closed the door to the closet and put caution tape in front of it.

1.8(c) not require plaintiff to establish that the area in which her accident occurred was normally exposed to falling material or objects. Rather, plaintiff may establish a violation of 23-1.8(c) by showing the job was a hard hat job and plaintiff’s failure to wear a hard hat was proximate cause of accident.

Defendant prevails by establishing the work on the site progressed to the point that there was no longer a danger of being struck by falling objects or materials. Issue of fact whether plaintiff provided with or told to wear a hard hat and whether a danger of being struck by falling objects remaining on the site or in area where accident occurred.  

October 8. Special Employer Defense. Special Employer Entitled to Workers’ Compensation Exclusivity Rule. Written Contract Not Required to Show Special Employer Status.

In a First Dept. 2024 decision Payano v. Proto Prop. Servs. LLC, 2024 NY Slip Op 04915, plaintiff, a building superintendent, alleges injuries caused while attempting to gain access to an apartment at the premises where he worked. Defendant managed the building on behalf of plaintiff’s general employer. Defendant asserts it is plaintiff’s special employer and as such, plaintiff barred from suing defendant by his election of workers’ compensation benefits. Plaintiff testified that he received all his work instructions from an employee of defendant, the building’s manager. Both plaintiff & building’s manager testified that they considered the building manager to be plaintiff’s boss or supervisor. Defendant had the right to fire plaintiff. Evidence showed that defendant supervised, directed & controlled plaintiff’s work. Although defendant produced no contract between itself and building owner, such a contract not a prerequisite for special employment status. Defendant established it was plaintiff’s special employer. Payano v. Proto Prop. Servs. LLC, 2024 NY Slip Op 04915;    

Comment. A complete defense to a Labor Law construction case & common law negligence is the defense that a plaintiff was a special employee of a defendant. Special employee is defined as “one who is transferred for a limited time of whatever duration to service of another.” Thompson v. Grumman Aerospace Corp., 78 NY2d 553. You have 2 employers: one is the general employer who provides workers’ compensation benefits coverage to the worker. The special employer, who hires out the plaintiff from the general employer, does not provide workers’ compensation benefits. However, where plaintiff has workers’ compensation insurance with the general employer, plaintiff is barred from bringing action against special employer.

In determining whether an entity is a special employer, most significant factor is whether the defendant entity controls manner, details, and ultimate result of employee’s work.

October 8. Comon Law Indemnification Denied. No Evidence Third-Party Defendants Caused Dangerous Condition. “Instrument For Good.”

First Dept in Ace Am. Ins. Co. v. Consolidated Edison Co. of NY, Inc., 2024 NY Slip Op 04800, held that defendant/third party plaintiff Con Ed was not a party to or a third-party beneficiary of Integral’s contract with defendant DiamondRock or Integral’s subcontract with PSI Plumbing. No evidence that either Integral or PSI Plumbing launched an instrument of harm where the fire occurred due to a leak from a Con Ed conduit inside one of the building’s electrical boxes. Allegations that PSI Plumbing’s work might have resulted in a leak was speculation. Integral’s scope of work not encompass waterproofing generally or waterproofing specifically within the electrical box where the preexisting leak originated. However, even if it did, such inaction would have been at most a refusal to become an instrument for good, which would not form the basis of a duty to either plaintiff or to Con Ed. No evidence that any leak contributed to the fire other than the leak from Con Ed’s conduit box and no one other than Con Ed was permitted access to its equipment or vaults. Con Ed’s action for common law negligence dismissed.

October 8. Fall From a Ladder Defense: Gratuitous Bailment & Readily Observable Defect.

Plaintiff fell from a ladder owned by his mother while hanging decorative lighting for a small party hosted by his mother. The accident occurred at the home of defendant Rogava. Gratuitous bailment is the transfer of possession or use of property without compensation, profit or commercial benefit. The no-cost loan of the ladder from plaintiff’s mother to be used in a party set-up was a gratuitous bailment. The benefit to the mother, if any, was of a personal, familial nature and not a commercial benefit. Also, the mother only owed a duty to warn plaintiff, as bailee, of a known defect that was not readily discernible. Mother’s testimony established that there was a 20-inch crack present on one of the ladder’s legs and missing rubber cleats. As such defects were apparent, no liability attached to the mother.

October 4. 4th Dept. Holds Tree Cutting Ancillary Work to Construction Project. 240(1) & 241(6) Not Dismissed.

Fourth Dept. 2024. Ells v. City of Niagara, 2024 NY Slip Op 04876. A tree being cut down by a coworker struck plaintiff. Plaintiff and coworkers were removing trees to ready the site for construction of a pedestrian bridge. While court noted trees are not structures and tree removal is not enumerated activity of 240(1), tree removal performed to facilitate enumerated activity is within 240(1) protection. Such tree removal was ancillary to larger construction project. Plaintiff also submitted expert affidavit that use of a safety device to control descent of felled trees was necessary. Defendant conceded tree cutting was necessary so construction project could go forward.

Comment. Court of Appeals, in Lombardi v. Stout, 80 NY2d 290 (1992) held tree cutting ancillary activity.

Work Deemed Ancillary to Construction Work. 240(1) Not Dismissed.

Tree Removal. Ancillary Work

Court of Appeals

Court of Appeals. 240(1) Liability Imposed. Plaintiff fell from ladder while cutting down a tree. A tree limb struck plaintiff’s ladder, causing fall to the ground. Tree removal was part of plan to remodel a house. The tree was to be removed to make way for the construction but also to allow paving the driveway of the house & in connection with a parking lot to serve the funeral home of defendant. As such, protection afforded under 240(1). Lombardi v. Stout, 80 NY2d 290;

First Dept.

Receiving Delivery of Construction Materials at Work Site

First Dept. 2020. 240(1) Imposed. Building construction not finished at time of accident. Ancillary Work. Plaintiff struck by load of lumber falling from a pallet being hoisted onto the roof of newly constructed 5 story apartment building. A manager testified the building “was almost done” at the time of plaintiff’s accident. Affidavit from another stated the building was already completed at the time of the accident was insufficient to raise an issue of fact. Plaintiff’s job of receiving delivery of construction material at the time of the accident was covered activity under 240(1), as it was ancillary to the construction work. Mejia v. Unique Dev. Holding Corp., 188 AD3d 574;  

Removing Equipment From Work Site

First Dept. 2023. 240(1) Not Dismissed. Removing Equipment From Site Was Ancillary Activity. Defendants failed to establish plaintiff’s activity in removing equipment from worksite & loading it onto roof of van not performed as part of larger renovation project CDI was hired to complete on premises, including roofing & shingling work. Plaintiff’s act of removing equipment after it was used by plaintiff & his CDI coworkers was act “ancillary” to alteration of  & protected under 240(1). Defendants offered no evidence establishing that climbing on van’s roof not necessary to task of securing equipment on vehicle roof, & also failed to offer evidence safety device enumerated in 240(1) would have prevented plaintiff’s fall. Defendants failed to establish 240(1) should be dismissed. However, plaintiff’s submissions showed existence of triable issue of fact whether fall resulted from lack of adequate safety device. Ramones v. 425 County Rd., LLC, 217 AD3d 977;  

Removing Items From Trade Booth

First Dept. 2017. 240(1) Liability Imposed. While plaintiff removing furniture from exhibition booth at conclusion of as trade show a lighting bar being removed from the top of booth by electrician fell & struck him in the head. As plaintiff’s specific task when accident occurred was ancillary to and part of larger demolition job of dismantling the booths, plaintiff engaged in 240(1) protected activity. Rutkowski v. NY Convention Ctr. Dev. Corp., 146 AD3d 686; 

Cleaning of Fuel Tank

First Dept. 2008. 240(1) Liability Imposed. Work performed by plaintiffs was more than simple cleaning of a fuel tank. Rather, it was part of more comprehensive, overall contract for the installation of a new boiler. Based on these facts, it cannot be said that the cleaning of work was not related to construction. Rivera v. Ambassador Fuel & Oil Burner Corp., 45 AD3d 275;

Second Dept.

Removing Carpeting. Ancillary to Demolition Work.

Second Dept. 2023. 240(1) Liability Imposed. Plaintiff fell from a ladder while removing carpeting. Such work was ancillary to the demolition work being performed. Depass v. Mercer Sq., LLC, 219 AD3d 801;

Second Dept. 2023. 240(1) Liability Imposed. Plaintiff assigned task of removing carpeting & flooring damaged by flooding. Plaintiff fell through a temporary plywood floor. Plaintiff’s work ancillary to the construction being performed. Estrella v. ZRHLE Holdings, LLC, 218 AD3d 640; 

Removing Equipment From Work Site & Loading Equipment into Van

Second Dept. 2023. 240(1) Not Dismissed. Defendants failed to show plaintiff removing equipment from work site & loading it onto a van was not performed as part of a larger renovation project that plaintiff’s employer was hired to perform, including roofing & shingling work. Plaintiff fell from top of van while attempting to tie down equipment with rope. Ramones v. 425 County Rd., LLC, 217 AD3d 977; 

Dismantling & Removal of Boards From Indoor Soccer Facility

Second Dept. 2021. 240(1) Liability Imposed.Plaintiff was loading soccer boards into back of box truck. Such boards used to form walls for indoor soccer fields.  Boards were all between 6 feet & 12 feet in length & weighed more than 100 pounds. While plaintiff stood on ground next to a forklift, one of boards slid off forklift, striking him in the head.  Alleged forklift was defective & lacked safety features which would have prevented accident. Disassembly and removal of boards from the soccer field was a partial dismantling of a structure and constituted “demolition” within 240(1). Disassembly & removal of boards was also significant physical change to structure’s configuration & constituted “altering” within 240(1). Plaintiff’s role in hauling away the boards after they had been removed by defendant was an act “ancillary” to the demolition & alteration of the field structure, protected under 240(1). Hensel v. Aviator FSC, Inc., 198 AD3d 884;

Tree Cutting Ancillary to Structural Repairs to House

Second Dept. 2015. 240(1) Liability Imposed.Plaintiff fell from roof of house while in process of cutting & removing 60 foot tree that had fallen on the house during Hurricane Irene. As the removal of the tree was the first step in the process of undertaking structural repairs to the house, such repairs could only be commenced by removing tree from the roof. 240(1) protects workers employed in enumerated acts even while performing duties ancillary to those acts. 240(1) not dismissed.  Moreira v. Ponzo, 131 AD3d 1025;

Stocking of Retail Shelves. Ancillary to Warehouse Renovation.

Second Dept. 2019. 240(1) Not Dismissed. Stocking Shelves Part of Warehouse Renovation. Plaintiff, a day laborer, fell 20 feet from platform of raised forklift while stocking shelves inside Brooklyn warehouse. Plaintiff hired by Euro Design Kitchen to perform various tasks as to renovation of warehouse for storage of Euro’s merchandise, including demolishing an office inside warehouse & assembling metal shelving units. Demolition completed & shelving units assembled 15 days prior to plaintiff’s accident. Defendants’ summary judgment motion denied as there was failure to demonstrate that plaintiff’s stocking of shelves not performed as part of the larger renovation he was hired to complete. Bonilla-Reyes v. Ribellino, 169 AD3d 858;

Repairing Overhead Railroad Wires

Second Dept. 2018. 240(1) Liability Imposed. Overhead Railroad Catenary Wires.  Plaintiff injured when he was cutting and removing a tree that had fallen during Hurricane Sandy onto catenary wires along New Haven Railroad Line. Plaintiff standing on the ground, using a power saw to cut through the tree trunk when tension in the catenary wires suddenly released, propelling the tree into the air, striking plaintiff. Such catenary wires could not be repaired and train service restored sans first removing the tree. As plaintiff was engaged in activities ancillary to repair of catenary wires, 240(1) applicable to such activities. De Jesus v. Metro-North Commuter RR, 159 AD3d 951;

Attempting to Remove Fallen Electrical Wires Off of House

Second Dept. 2006. 240(1) Liability Imposed. Ancillary Activity. Plaintiff working at underground sewer project when a backhoe used on the project came into contact with overhead electrical wires.  As a result, one of the wires was hanging low as it fell off a metal hook on the side of a private home. Plaintiff had another worker elevate him in a bucket of a backhoe in attempt to reconnect the wire to the metal hook of the house. Plaintiff lost his balance and fell 25 feet from the backhoe to the ground. Held that plaintiff was employed in repair or alteration of the sewer line when his accident occurred and the work he was performing as to electrical wire was ancillary to such work. Lijo v. City of NY, 31 AD3d 503;

Taking Site Measurements

Second Dept. 2013. 240(1) Liability Imposed. Ancillary Work. Plaintiff came to work site to take measurements in preparation for fabricating coping stones for the roof of the building.  He fell from the roof to a terrace, a distance of 12 feet.  Here, townhouse was hired to fabricate sills, lintels and coping stones to be used in construction of the building. Part of that job included going to the work site & climbing to the roof of building to take measurements in preparation for the fabrication. As such, plaintiff performing a task ancillary to construction work & engaged in a covered activity within 240(1). Gallagher v. Resnick, 107 AD3d 942;

Work Performed to Temporary Boiler

Second Dept. 2007. 240(1) Liability Imposed. City of NY hired plaintiff’s employer to install a temporary boiler at a building owned by the City. During installation, plaintiff ascended a ladder to disconnect industrial hoses from temporary boiler. While detaching one of the hoses, plaintiff fell from a ladder. Installation of temporary boiler involved acts constituting alterations to the building and the work which plaintiff was performing was ancillary to such acts. As such, the accident is within protection of 240(1). Destefano v. City of NY, 39 AD3d 581;

Boat Repair Work

Second Dept. 2004. 240(1) Liability Imposed. Plaintiff tripped on a hose & fell over the side of a vessel at an area where a wall surrounding vessel’s deck was removed. Plaintiff, through his employer, performing work under a contract requiring a land-based alteration of a vessel. Where plaintiff was walking to retrieve additional solder, he was performing duties ancillary to the repair, reconstruction, or alteration of the vessel, and as such, protected by 240(1). Aguilar v. Henry Marine Service, Inc., 12 AD3d 542.

Third Dept.

Ancillary Work

Work Assignment’s Interconnected Steps

Third Dept. 2011. 240(1) Liability Imposed. Wells Communication contracted with defendant to perform installations, repairs and services for defendant’s cable TV and Internet subscribers. In course of employment with Wells, plaintiff went to subscriber’s house to install new equipment, wirings & fittings inside home & replacing a ground cable & modifying certain equipment attached to wires outside the home. Plaintiff set up 28 foot extension ladder. While plaintiff descending ladder, ladder slid sideways causing plaintiff to jump off ladder. Defendant asserted modification plaintiff made to outside structure such as removing a cable filter & screwing in a new one, was routine task like replacing a light bulb, that did not significantly change the poles or wires. Court disagreed. Work of plaintiff involved a series of interconnected steps, all documented by single work order & all necessary to complete the upgrade. Upgrade not functional & work not complete until the final step, replacing cable filter, was completed. Randall v. Time Warner Cable, Inc., 81 AD3d 1149;

Fourth Dept.

Fall Occurred on Work Site as Plaintiff Attempting to Move to Area To Speak With Coworker

Fourth Dept. 2011. 240(1) Liability Imposed. At the time of the accident, plaintiff’s brother taking measurements on upper level of barn owned by Otis & such measurements necessary & incidental to replacement of rotting carrier beams. Plaintiff & his brother partners of Gowans Home Improvement, a construction company hired to perform such replacement work. Plaintiff’s brother instructed to cover hay hole causing plaintiff’s fall while ascending to upper level of barn to speak with his brother. To recover under Labor Law, it is not necessary an employee be actually working on assigned duties at time of the accident. Relevant inquiry is not whether plaintiff picked up tool to effect a repair, but whether he was hired to take part in repair work. Gowans v. Otis Marshall Farms, Inc., 85 AD3d 1702; 

Ancillary Activity. Issue of Fact

Tree Removal

Fourth Dept. 2024. Els v. City of Niagara Falls, 2024 NY Slip Op 04876; Plaintiff injured when tree that was being cut down fell on him.  Trees were removed in order to construct pedestrian bridge, It held the tree cutting work was ancillary to the construction project and thus within 240(1) protection.

Fourth Dept. 2020. Tree Removal Issue of Fact. Plaintiff was cutting down trees adjacent to NY State Thruway and plaintiff’s supervisor was using an excavator to move the cut trees into piles.  A tree fell from excavator and struck him. Although trees not structures & tree removal in & of itself not enumerated activity within 240(1), tree removal performed to facilitate enumerated activity is within 240(1). Issue of fact whether tree removal work ancillary to larger construction project. Specifically culvert installation work, that was ongoing at time of the accident. Krencik v. Oakgrove Constr., Inc., 186 AD3d 1006;

Fourth Dept. 2014. Moving Piece of Equipment or Removing 1000 Pound Machine & Replacing it With New Machine. Accident occurred when plaintiff drive forklift over plywood covered pit in floor of  building. Evidence unclear whether plaintiff in process of simply moving a “towel folder,” which would not provide 240(1) protection, unless such activity was ancillary to ongoing renovation work or, whether, plaintiff was removing an old machine weighing 1000 pounds & then installing and securing to the floor a new machine as a replacement, which would provide protection of 240(1). Foots v. Consolidated Bldg. Contrs., Inc., 119 AD3d 1324;

Ancillary Demolition Work

Fourth Dept. 2022. Work performed by plaintiff was covered work, inasmuch as it was ancillary to demolition of a structure, i.e., a stage, & plaintiff was a member of demolition team. Finocchi v. Live Nation Inc., 204 AD3d 1432;

October 4. Fourth Dept. Holds Industrial Codes 23-1.7(a)(2) and 23-2.1(b) Violated as Plaintiff Struck by Fallen Tree.

Fourth Dept. 2024. Ells v. City of Niagara Falls, 2024 NY Slip Op 04876. Plaintiff struck by a falling tree that was cut in as part of construction of a pedestrian bridge. 1.7(a)(2) requires “barricades to cordon off areas for the safety of those not required to work within the sectioned off area.” 23-2.1(b) was violated as the wood chipper used by plaintiff was placed in area where trees were falling. Code is entitled, “Disposal of debris” and states, Debris shall be handled and disposed of by methods that will not endanger any person employed in the area of such disposal or any person lawfully frequenting such area.

October 4. Industrial Code 23-2.1 Not Violated as Material Causing The Fall Not in Storage. Rather, Material Was in Use.

Hon. Richard Latin, in Leon v. Plaza Constr., LLC, 2024 NY Slip Op 33449(U), NY Supreme Court, which arose out of plaintiff falling from stacked rebar at a construction site, dismissed 23-2.1 because 23-2.1 only applies to stored materials.

(1) All building materials shall be stored in a safe and orderly manner. Material piles shall be stable under all conditions and so located that they do not obstruct any passageway, walkway, stairway or other thoroughfare.

The stacked rebar causing the fall was in use at the time of the accident. As it was not being stored, but rather was in use as plaintiff was handing sections of rebar to coworkers, the rebar was in use. 23-2.1(1) goes to accidents occurring from materials being stored, not to accidents from material being installed. If an accident resulted from rebar being stored at a location at a site for future use, 23-2.1(1) likely applies.

October 3. While Contractual Indemnification Premised Upon Performance of The Work, Where NYCHA Was Negligent, NYCHA Not Entitled to Indemnity. GOL 5-322.1.

First Dept. 2024. Newman v. NYCHA, 2024 NY Slip Op 04820. As the parties’ contract had a performance of the work trigger, Triple H Construction’s duty to indemnify NYCHA was triggered solely by plaintiff’s accident occurring while in the performance of Triple H’s contractual duties. However, even if NYCHA entitled to contractual indemnification, Triple H had no duty to indemnify NYCHA as the duty to warn of a dangerous premises condition is one belonging to the property owner. As Triple H not own the property, it had no duty to warn of a dangerous condition. As such, NYCHA was the only party which may be found to be negligent. General Obligations Law 5-322.1 prohibits contractual indemnification resulting from the party seeking indemnity.

Comment. Indemnification language of “arising from the performance of the work” is a broader indemnification obligation than where indemnity obligation requires a showing of negligence. If the subcontractor’s worker is injured in the course of the subcontractor’s work, injury arises from the “performance of the work,” requiring indemnification. But the “performance of the work” indemnity is not immune to GOL 5-322.1, which denies indemnity to an entity whose negligence caused the accident. Entity cannot be indemnified where it solely caused the accident.

October 3. General Obligation Law 5-322.1 Prohibiting Indemnity to Party Whose Was Negligent, Not Apply to Costs & Expenses.

The above case in Newman v. NYCHA, 2024 NY Slip Op 04820, held that GOL 5-322.1 does not prohibit indemnification for costs and expenses. “As the parties’ contract requires Triple H to indemnify NYCHA not only from any and all claims and judgments for damages, but also from costs and expenses.” Even though Triple H had no obligation to indemnify NYCHA for bodily injuries, NYCHA was entitled to indemnity for costs and expenses from Triple H. Decision cited Ging v. EJ Sciame Constr. Co., Inc., 193 AD3d 415 (1st Dept. 2021).

October 3. 240(1) Awarded. The Falling Load Required Securing. Not Matter That Plaintiff Did Not Know Why Falling Object Fell at Work Site.

First Dept., in October 1, 2024 decision, Tejada-Rodriguez v. 76 Eleventh Ave. Prop. Owner LLC, 2024 NY Slip Op 04752, cited prior appellate decision holding that plaintiff’s failure to explain how a wooden panel fell from a concrete-poured ceiling did not preclude granting summary judgment to plaintiff. Fuentes v. YJL Broadway Hotel, LLC, 210 AD3d 552 (1st Dept. 2022). It was 240(1) liability as the work being performed, i.e., dislodging wooden panels from a newly constructed concrete ceiling involved a load that required securing. The Tejada-Rodriguez decision also held plaintiff’s account of the accident was not “inherently or physically impossible.”

October 2. 240(1) Dismissed. 4-Foot Fall From Flatbed Area of Parked Truck. Toefer.

First Dept. in October 1 decision, Pitang v. Beacon Broadway Co., LLC, 2024 NY Slip Op 04749,cited Court of Appeals decision, Toefer v. Long Is. Railroad, 4 NY3d 399(2005), dismissed 240(1) cause of action where he fell 4 feet from flatbed area of parked truck. Plaintiff lost his balance when he stood upon unsecured 2 by 4 piece of lumber near the edge of the flatbed truck. Piece of lumber flipped, causing a fall. The decision distinguished situation where a worker was exposed to elevation differential of 10 feet or more while working from on top pf stacked materials on a flatbed truck. Agurto v. One Boerum Dev. Partners LLC, 221 AD3d 442 (1st Dept, 2023).

October 1. Section 240(1) Dismissed. Plaintiff Not Engaged in Repair Work. Elevated Fall Not Within 240(1) If Not Engaged in Enumerated Work of 240(1).

In a September 26 decision, Tenecyck v. Port Auth. of NY & NJ, 2024 NY Slip Op 33396(U) Supreme Court, NY County, Hon. Margaret Chan, plaintiff was employee of subcontractor hired to dewater the site. Plaintiff fell on an unsecured plank of a wooden scaffold. Plaintiff’s work was part of the dewatering activities, which entailed walking around the site and checking portable pumps to ensure that they were working properly. If a pump was not functioning properly, he would replace it and take the malfunctioning pump to the shop for repairs. While plaintiff’s job did not involve repairs, the repairs are done in a shop, and plaintiff did not allege the repairs are height related or that he was repairing a pump at the time of the accident. As such, plaintiff’s work is not a covered activity under 240(1), resulting in dismissal of the 240(1) action.

Comment. Even if an accident results in a fall from elevated height, if the worker was not performing an enumerated activity of 240(1): erection; demolition; repairing; altering; painting; cleaning or pointing of a building, 240(1) cause of action is dismissed. Repairing is not maintenance.

September 27. Evidence. Workers’ Compensation & Medical Statements. Expert. 240(1).

First Dept. 2024, Mosquera v. TF Cornerstone Inc., 2024 NY Slip Op 04610, plaintiff fell off the edge of bathtub he was standing on while painting. It was held the accident description contained in Workers’ Compensation questionnaire not raise issue of fact as such questionnaire not have the certification of a translator indicating plaintiff’s words were accurately translated from Spanish. Reports from plaintiff’s medical treatment were similarly flawed and uncertified. Defendants’ expert who examined accident scene 4 years post accident not raise issue of fact. Expert conceded he could not state that the ladder he examined was the one plaintiff fell from.

September 25. Foreman’s Unsworn Written Statement as to Cause of Accident Not Admissible Evidence. Hearsay.

The First Dept. in Oliveira v. Top Shelf Elec. Corp., 2024 NY Slip Op 04523, held the lower court properly rejected defendants’ attempts to defeat a summary judgment motion by relying solely on hearsay. Although defendants submitted a foreman’s written statement attributing certain statements to plaintiff, that written statement itself was unsworn. The statement in an incident report that plaintiff was moving a washing machine at the time of the accident is hearsay. Party admission exception to hearsay rule inapplicable as the report attributed that statement to a foreman rather than the plaintiff. Defendants failed to establish the business records exception applies to that statement, in the absence of any showing the foreman had personal knowledge of the accident. Oliveira v. Top Shelf Elec. Corp., 2024 NY Slip Op 04523;

The rule is a hearsay statement is admissible in opposing a summary judgment motion where such hearsay evidence is not the only evidence offered in opposition to such motion.

Hearsay Exception.

Hearsay Statements Considered by Court in Opposing Summary Judgment Motion If Not The Only Evidence Offered in Support of Position