Cervical Spine Surgery
First Dept.
First Dept. 2019. Dacaj v. NYC Transit Auth., 170 AD3d 561;
Trial Court. Supreme Court, Bronx County.
Cervical laminal fractures, bulges & herniations. 2 surgeries performed to his neck.
Jury Award. $1.2 million for past pain & suffering. $1 million for future pain & suffering over 10 years.
Appellate Court. Reduced award for past pain & suffering to $1 million. Reduced future pain & suffering to $675,000.
First Dept. 2007. Hairston v. Metro-North Commuter RR, 34 AD3d 233;
Trial Court. Supreme Court, NY County.
Fall from stepladder.
Spinal fusion surgery.
Jury Award. $50,000 for past pain & suffering. $100,000 for future pain & suffering.
Appellate Court increased award for past pain & suffering to $100,000 & increased future pain & suffering to $200,000.
2023. Trial Court. NY County. Barcia v. Costco Wholesale Corp., 2023 NY Slip Op 31642(U);
56 year old suffering slip & fall on puddle of water at retail store.
Neck surgery. Degenerative disc disease.
Jury Award. $250,000 for past pain & suffering. $60,000 for future pain & suffering.
Trial Court. Affirmed jury award.
First Dept. 2019. Trial Court. Bronx County. Guadalupe v. Stevenson, 2019 NY Slip Op 30953(U);
MV Accident.
Cervical fusion & left knee surgery.
Jury Awards. $650,000 for past pain & suffering. $1 million for future pain & suffering.
Trial Court affirmed award for past pain & suffering. Reduced award for future pain & suffering to $850,000.
Second Dept.
Second Dept. 2023. Petit v. Archer, 218 AD3d 695;
Trial Court. Supreme Court, Kings County.
Motor vehicle accident.
Cervical fusion surgery.
Jury Award. $600,000 for past pain & suffering. $1.5 million for future pain & suffering.
Appellate Court reduced award for future pain & suffering to $1.2 million.
Second Dept. 2021. Masmalaj v. NYC Economic Dev. Corp., 197 AD3d 1294;
Trial Court. Supreme Court, Kings County.
Fall from scaffold.
Herniated disc at C4-5. Cervical fusion surgery.
Jury Award. $2 million for past pain & suffering. $349,840 for future pain & suffering for 36 years.
Appellate Court reduced award for past pain & suffering to &1 million. Reduced future pain & suffering to $55,763.
Second Dept. 2021. Nieva-Silvera v. Katz, 195 AD3d 1035;
Trial Court. Supreme Court, Queens County.
Motor vehicle accident.
Herniated disc at C6-C7 & tears of medial & lateral meniscus & partial tear of lateral collateral ligament of left knee. Spinal fusion surgery for herniated disc. Testimony of likely future fusion surgery at C5-C6.
Jury Award. $5 million for past pain & suffering. $36 million for future pain & suffering over period of 41 years.
Appellate Court reduced past pain & suffering award to $750,000. Reduced future pain & suffering award to $1.5 million.
Second Dept. 2021. Rojas v. Brabant, 192 AD3d 934;
Trial Court, Supreme Court, Westchester County.
Herniated disc resulting in spinal fusion surgery.
Jury Award. $100,000 award for past pain & suffering. $50,000 for future pain & suffering over 14.5 years.
Appellate Court increased past pain & suffering award to $300,000. Increased future pain & suffering to $200,000.
Second Dept. 2019. Tarpley v. NYC Tr. Auth., 177 AD3d 929;
Trial Court. Supreme Court, Queens County.
MV accident.
Anterior cervical discectomy & fusion surgery. Laminectomy for placement of spinal cord stimulator to relieve lower back pain.
Jury Award. $3 million for past pain & suffering. $7 million for future pain & suffering.
Appellate Court reduced past pain & suffering award to $1 million. Reduced future pain & suffering award to $2 million.
Second Dept. 2019. Chung v. Shaw, 175 AD3d 1237;
Trial Court. Supreme Court, Kings County.
MV accident.
Anterior cervical discectomy & fusion surgery at C5-C6 level.
Jury Award. $25,000 for past pain & suffering. $0 for future pain & suffering.
Appellate Court increased award for past pain & suffering to $150,000. Increased award for future pain & suffering to $100,000.
Second Dept. 2019. Kapassakis v. MTA, 193 AD3d 835;
Trial Court. Supreme Court, Nassau County.
2 cervical spine discectomy & fusion surgeries & arthroscopic knee surgery.
Jury Award. $75,000 for past pain & suffering. $0 for future pain & suffering.
Appellate Court increased past pain & suffering award to $200,000.
Second Dept. 2017. Nayberg v. Nassau County, 149 AD3d 761;
Trial Court. Supreme Court, Nassau County.
MV accident.
Surgery for cervical level herniated disc.
Jury Award. $600,000 for past pain & suffering. $1 million for future pain & suffering.
Appellate Court affirmed jury award.
Second Dept. 2017. Starkman v. City of Long Beach, 148 AD3d 1070;
Trial Court. Supreme Court, Nassau County.
MV accident.
17 months after accident, multi-level cervical fusion to treat disc herniations. When the bone failed to properly fuse, second surgery performed 15 months later. Fractures of transverse processes of C6, C7 & T1 vertebrae. 3 fractured ribs.
Jury Award. $500,000 for past pain & suffering. $750,000 for future pain & suffering.
Appellate Court increased award for past pain & suffering to $750,000. Increased award for future pain & suffering to $1.5 million.
Second Dept. 2016. Kowalsky v. County of Suffolk, 139 AD3d 903;
Trial Court. Supreme Court, Suffolk County.
Plaintiff struck by vehicle.
Laminectomy & lumbar spinal fusion at L4-5.
Jury Award. $200,000 for past pain & suffering. $850,000 for future pain & suffering for 41 years.
Appellate Court affirmed jury award.
Second Dept. 2015. Kusulas v. Saco, 134 AD3d 772;
Trial Court. Supreme Court, Kings County.
MV accident.
Herniated discs at C4-5 & C5-6 requiring spinal fusion surgery. Second surgery after bone graft between C5-6 failed to properly fuse, causing adjacent disc at C6-7 to herniate.
Jury Award. $1 million for past pain & suffering. $1 million for future pain & suffering.
Appellate Court affirmed jury award.
Second Dept. 2014. Cicola v. County of Suffolk, 120 AD3d 1379;
Trial Court. Supreme Court, Suffolk County.
MV accident.
Injury to cervical region of spine requiring 2 spinal fusion surgeries.
Jury Award. $325,000 for past pain & suffering. $250,000 for future pain & suffering.
Appellate Court reduced award of past pain & suffering to $150,000. Reduced future pain & suffering to $100,000.
Second Dept. 2009. Baird v. VIP Mgt. Co., Inc., 60 AD3d 608;
Trial Court. Supreme Court, Westchester County.
3 surgeries to repair 2 discs between 5th & 6th vertebrae. Such surgeries involved placing bone grafts between vertebrae. Graft between 6th & 7th vertebrae not fuse properly.
Jury Verdict. $100,000 for past pain & suffering. $300,000 for future pain & suffering.
Appellate Court increased award for past pain & suffering to $400,000.
Second Dept. 2008. Kihl v. Pfeffer, 47 AD3d 154;
Trial Court. Supreme Court, Nassau County.
MV Accident. College student.
Ankle was casted and neck stabilized with “halo device.” For 2 months after the accident, confined to wheelchair. After this plaintiff was able to return to college, graduate & obtain a job. However, neck persisted. Underwent spinal fusion surgery which removed the disc between C2/C3 vertebrae & replacing it with bone from her hip. Such surgery only increased her pain level. Pain medications prevented her from having more children.
Jury Award. $625,000 for past pain & suffering. $1.2 million for future pain & suffering.
Appellate Court affirmed jury award.
Second Dept. 2007. Sanz v. MTA-Long Is. Bus, 46 AD3d 867;
Trial Court. Supreme Court, Nassau County.
MV accident.
Herniated discs in cervical spine. Anterior cervical discectomy with allograft & plate fusion.
Jury Award. $350,000 for past pain & suffering. $400,000 for future pain & suffering.
Appellate Court reduced award for future pain & suffering to $200,000.
Second Dept. 2004. Lifshits v. Variety Poly Bags, 5 AD3d 566;
Trial Court. Supreme Court, Kings County.
Struck by truck.
Spinal fusion surgery.
Jury Award. $200,000 for past pain & suffering. $825,000 for future pain & suffering.
Appellate Court reduced award for past pain & suffering to &150,000. Reduced future pain & suffering to $500,000.
Third Dept.
Third Dept. 2004. Felitti v. Daughriety, 12 AD3d 909;
Trial Court. Supreme Court, Rensselaer County.
MV accident.
Spinal fusion surgery.
Jury Award. $30,000 for past pain & suffering. $25,000 for future pain & suffering.
Appellate Court. Affirmed jury award.
Fourth Dept.
Fourth Dept. 2024. Vasquez v. Gilbane Bldg. Co., 224 AD3d 1232;
Trial Court. Supreme Court, Erie County.
Construction site accident. Struck by falling ladder.
57 years old. Projected life expectancy of 28 years.
Anterior discectomy & spinal fusion, requiring removal of discs at C4-5; C5-6 and C6-7 & insertion of spacers & bone graft. Plaintiff established would require future surgery within 2 years from herniation at C3-4. Also established would require surgery to repair labral or posterior tear of shoulder.
Jury Award. $1,250,000 for future pain 7 suffering.
Appellate Court affirmed jury award.
Fourth Dept. 2015. Swatland v. Kyle, 130 AD3d 1453;
Trial Court. Supreme Court, Erie County.
Herniated discs at C5-C6 & C6-C7 requiring surgery.
Jury Award. $30,000 for past pain & suffering. $15,000 for future pain & suffering.
Appellate Court increased award for past pain & suffering to $150,000. Increased award for future pain & suffering to $50,000.
Fourth Dept. 2008. Orlikowski v. Cornerstone Community Fed. Credit Union, 55 AD3d 1245;
Trial Court. Supreme Court. Erie County.
Fall from scaffolding.
Underwent a discectomy & testimony he would require spinal fusion surgery.
Jury Award. $100,000 for past pain & suffering. $28,000 for future pain & suffering.
Appellate Court increased future pain & suffering to $100,000.
Fourth Dept. 2007. Huff v. Rodriguez, 45 AD3d 1430;
MV accident.
7 herniated discs & 3 annular tears in cervical spine. 2 discogram procedures. 4 level discectomy fusion surgery.
Jury Award. $500,000 for past pain & suffering. $5,250,000 for future pain & suffering over 42 years.
Appellate Court. Reduced future pain & suffering award to $3 million.
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
First Dept.
First Dept. 2022. Sole Reliance on Hearsay Statement. Expert’s assertion that his comparison of the scaffold he inspected with post-accident photographs of the one involved in the accident confirmed that they were the same was conclusory & his sole reliance on a hearsay statement of employee of defendant cannot defeat summary judgment. Santos v. Monadnock Constr., Inc., 209 AD3d 598;
First Dept. 2020. Plaintiff not sole proximate cause of accident or a recalcitrant worker or acting outside scope of his duties in dismantling a scaffold. Plaintiff testified his employer instructed him to dismantle scaffold. Only support for defendant’s contention that dismantling the scaffold was outside of his duties was inadmissible hearsay evidence. While hearsay may be considered in opposition to a summary judgment motion, it is insufficient where it is the only evidence upon would denial of summary judgment would be based. Clarke v. Empire Gen. Contr. & Painting Corp., 189 AD3d 611;
First Dept. 2019. 240(1) Imposed. Plaintiff fell to the ground when the lift truck upon which they were working moved when it was struck by passing vehicle. The lift truck, which was being used as elevated work platform, lacked a guardrail to prevent falls. Defendants relied upon hearsay as to how the accident occurred. Hearsay evidence alone insufficient to defeat summary judgment motion. South v. MTA, 176 AD3d 447;
First Dept. 2018. Plaintiff made a prima facie showing that he fell from unsecured ladder. Defendants’ opposition was unsworn hearsay statements from witnesses previously undisclosed in discovery and failed to raise issue of fact. Court noted that in over 2 ½ years since the statements were taken, defendant never attempted to obtain affidavits from the witnesses or attempted to depose them, offering their statements only after plaintiff moved for summary judgment. While hearsay statements may be offered in opposition to a motion for summary judgment, such hearsay statements cannot defeat summary judgment where it is the only evidence upon which the opposition to summary judgment is predicated. Gonzalez v. 1225 Ogden Deli Grocery Corp., 158 AD3d 582;
First Dept. 2017. Uncertified records without proper certification may be considered in opposition to a motion for summary judgment but only when they are not the sole basis for the court’s determination. Here, the unverified documents & unsworn statement are the only evidence to challenge details of plaintiff’s version of accident & therefore should not be considered. Erkan v. McDonald’s Corp., 146 AD3d 466;
First Dept. 2016. While hearsay may be considered in opposition to defeat a summary judgment motion if it is not the only evidence upon which opposition to the motion is predicated, because it was the only evidence establishing that plaintiff disregarded an instruction to use the safety devices, it is insufficient to defeat plaintiff’s motion. Ving Choy Chong v. 457 W. 2nd St. Tenants Corp., 144 AD3d 591;
First Dept. 2013. Plaintiff alleged ladder twisted & then slipped out from underneath him. However, affidavit of Kleinberg-Levin, who hired plaintiff’s employer & was in the apartment at the time of the accident, stated no ladders were being used on date of alleged accident. Affidavit raises issue of fact whether accident occurred as plaintiff alleged. Also, medical reports quoted plaintiff providing a different description of accident. Even if reports are hearsay, they may be submitted & may bar summary judgment when considered in conjunction with other evidence. Marquez v. 171 Tenants Corp., 106 AD3d 422;
First Dept. 2012. C-2 report not signed or authenticated & not clear who created the report or where that person acquired the information. Assuming the site medic listed on the report completed it, an affidavit from the same medic gives a different version of accident from that listed on C-2. Affidavit not address such inconsistency & is also not notarized. While hearsay statements may be used to oppose a summary judgment motion, such evidence is insufficient to warrant a denial of the motion where, as here, it is the only evidence submitted in opposition. Taylor v. One Bryant Park, LLC., 94 AD3d 415;
First Dept. 2011. Plaintiff testified he fell off unsecured ladder. Defendant submitted unsworn statement by plaintiff’s employer that he did not know plaintiff & plaintiff not work for him, Such statement was hearsay & unaccompanied by any other evidence tending to show that plaintiff’s presence on work site was not authorized & therefore failed to raise issue of fact. Rodriguez v. 3251 Third Ave. LLC, 80 AD3d 434;
First Dept. 2004. Lower court erred in finding plaintiff’s accident arose out of Forest’s work at the project. Fenlon’s statement that plaintiff told him that the accident was caused by inadequate lighting is hearsay which cannot support a motion for summary judgment relief unless accompanied by other direct evidence. It was undisputed that Fenlon did not go into area of plaintiff’s accident & it is not clear he actually saw the purported pipe over which plaintiff tripped. Nor did Fenlon’s testimony establish the subject pipe came from Forest. AIU Ins. v. American Motorists Ins., 8 AD3d 83;
First Dept. 1999. Other Evidence Offered Along With Hearsay Statement. Plaintiff fell from a ladder. Defendants offered the testimony of subcontractor’s president to the effect that plaintiff was observed “skipping” the ladder, meaning trying to move it while standing on it by jerking his body. While the president’s testimony was based on hearsay, also photographic evidence contradicting plaintiff’s assertion of defective equipment. Plaintiff’s summary judgment motion denied. Guzman v. LMP Realty Corp., 262 AD2d 99;
Second Dept.
Second Dept. 2015. Owner was merely recounting what he learned from interviewing plaintiff’s foreman, who did not witness the accident. Although hearsay evidence may be considered in opposition to a motion for summary judgment, such evidence alone not sufficient to defeat motion. Guanopatin v. Flushing Acquisition Holdings, LLC, 127 AD3d 812;
Second Dept. 2014. Hearsay evidence that decedent told Valerio at about 5:30 pm on date of the accident that he was going to work overtime was insufficient, when combined with plaintiffs’ limited non-hearsay submissions, to raise triable issue of fact as to whether decedent was actually engaged in statutorily protected work activity at the time of his fall. Feinberg v. Sanz, 115 AD3d 705;
Second Dept. 2012. Other Evidence Besides Hearsay Evidence. Based on Personal Observation. Supreme Court erred in refusing to consider any portion of Kern’s affidavit because it was inadmissible hearsay. Although hearsay evidence is insufficient to defeat a summary judgment motion if it is only evidence submitted, here Kern’s statement that scaffold was equipped with 2 railings was based on his personal observation & as such was not hearsay. Silva v. FC Beekman, 92 AD3d 754;
Second Dept. 2011. Medical Report May be Admissible in Opposition to Motion. Defendant submitted a report prepared by neurologist who examined plaintiff 6 weeks after the accident where plaintiff said that while descending a ladder on which he had been working, plaintiff “missed a step.” If accurate, such statement differed from the account in his affidavit in support of summary judgment motion & would support a finding the plaintiff’s alleged negligence was sole proximate cause of the accident. Statement in the medical report was not germane to the diagnosis or treatment of plaintiff & therefore, at trial, it would not be admissible for its truth under business records exception. However, the requirement that evidentiary proof be submitted in admissible form is “more flexible” when applied to a party opposing a motion for summary judgment than when applied to the moving party. As such, proof which is inadmissible at trial may, nevertheless, be considered in opposition to a motion for summary judgment, especially where inadmissible evidence does not provide the sole basis for denial of summary judgment. Such proof is admissible as long as nonmoving party is able to demonstrate acceptable excuse for failing to meet the strict requirement of tender in admissible form. Here, defendants demonstrated acceptable excuse for failing to elicit admissible evidence from plaintiff’s treating neurologist at this stage of proceedings. Also, plaintiff’s equivocal responses at his deposition regarding possibility that he “missed a step” while descending the ladder, as well defendants’ potential ability to present evidence contained in medical report in admissible form at trial, establish issue of fact. Merriman v. Integrated Bldg. Controls, Inc., 84 AD3d 897.
September 24. Elevator Not a “Passageway” Under Industrial Code 23-1.7(e)(1).
23-1.7(e)(1). All passageways shall be kept free from accumulations of dirt and debris and from any obstructions or conditions which could cause tripping.
The First Dept. held in Smith v. Extell West 45th LLC, 2024 NY Slip Op 04553, “The elevator in which plaintiff’s accident occurred, cannot be considered a walkway or pathway, and therefore cannot constitute s passageway within the meaning of 23-1.7(e)(1).” As the elevator was not a “passageway,” 23-1.7(e)(1) was dismissed.
As to 23-1.7(e)(2), which states: “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 as may be inconsistent with the work being performed.”
The appellate court held the elevator floor was a floor or similar area where persons passed within the meaning of 23-1.7(e)(2). As such, 23-1.7(e)(2) applied to plaintiff’s accident occurring in an elevator. An elevator does not readily come to mind as a “floor, platform and similar areas where persons work or pass.” An elevator is a means of a worker getting to or departing
a work area. However, 23-1.7(e)(2) also contains the work “pass.,” meaning to pass by. When a worker is using an elevator to arrive or depart from a work area, the elevator floor is within 23-1.7(e)(2).
September 24. Labor Law 241(6) Requires a Section 23 NY Industrial Code That is a Specific Safety Code, Not a General Safety Code.
First Dept. in Smith v. Extell West 45th LLC, 2024 NY Slip Op 04553, held that Industrial Code Section 23-7.3(e)), requiring that elevator cars being installed in buildings or other structures for permanent use being used before completion of the building or structure shall be operated only by competent, trained, designated persons. It was held 23-7.3(e) is not sufficiently specific to support a 241(6) claim, “as it simply sets general safety standards and does not mandate compliance with concrete specifications.” As such, 23-7.3(e) was dismissed.
If the only Industrial Code(s) alleged is a general safety standard, the 241(6) is dismissed by a court.
September 21. Defense to Industrial Code 23-1.7(e)(2) in Labor Law 241(6) Cause of Action. Integral Part of The Work.
23-1.7(e)(2). Working Areas.
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 as may be consistent with the work being performed.
Plaintiff was working alongside another employee who was operating a Bobcat vehicle equipped with a shovel/scooper used to pick up large pieces of debris. As the Bobcat lifted up a cable on the ground, the cable caught on plaintiff’s foot, causing plaintiff to be lifted into the air and then dropped onto his head & back. Sanchez v. Consolidated Edison Co. of NY. Inc., 2024 NY Slip Op 33223(U), Hon. Paul Goetz, Supreme Court, NY County.
In dismissing 23-1.7(e)(2), decision noted plaintiff was tasked with removing debris in connection with demolition work. “Since plaintiff tripped over a piece of wire which he and his coworkers were tasked with removing, it was an integral part of the work he was performing and therefore liability on the 241(6) claim cannot arise from 23-1.7(e)(2) violation.
As to 23-1.7(e)(2), was the tripping debris part of the demolition work? If so, it is an integral part of the work and a defense to 1.7(e)(2).
Industrial Code 23-9.2(b)(1) is a General Safety Standard. Not Support 241(6) Action.
23-9.2(b)(1).
All power-operated equipment used in construction, demolition or excavation operations shall be operated only by trained, designated persons and all such equipment shall be operated in a safe manner at all times.
Sanchez v. Consolidated Edison Co. of NY. Inc., 2024 NY Slip Op 33223(U), Hon. Paul Goetz, Supreme Court, NY County. Decision cited Sinai v. Luna Park Hous. Corp., 209 AD3d 600 (1st Dept. 2022).
23-9.2(c)
Power-operated material handling equipment shall not be loaded in excess of the manufacturer’s design live load rating. All loads shall be properly trimmed to prevent dislodgement of any part of such loads during transit.
Plaintiff was working alongside another employee who was operating a Bobcat vehicle equipped with a shovel/scooper used to pick up large pieces of debris. As the Bobcat lifted up a cable on the ground, the cable caught on plaintiff’s foot, causing plaintiff to be lifted into the air and then dropped onto his head & back. Sanchez v. Consolidated Edison Co. of NY. Inc., 2024 NY Slip Op 33223(U), Hon. Paul Goetz, Supreme Court, NY County.
23-9.2(c) was dismissed as no evidence the Bobcat was overly or improperly dismissed.
September 21. Worker at Ground Level Being Lifted Up Into The Air Not Entitled to Protection of 240(1). No Enumerated Safety Devices Would Have Prevented Accident.
240(1) applies to workers falling from elevated heights and workers struck by falling objects that were improperly hoisted or improperly secured. In Sanchez v. Consolidated Edison Co. of NY. Inc., 2024 NY Slip Op 33223(U), Hon. Paul Goetz, Supreme Court, NY County, plaintiff was removing debris at demolition site. Plaintiff was working alongside another employee who was operating a Bobcat vehicle equipped with a shovel/scooper used to pick up large pieces of debris. As the Bobcat lifted up a cable on the ground, the cable caught on plaintiff’s foot, causing plaintiff to be lifted into the air and then dropped onto his head & back.
In dismissing the 240(1) action, the decision stated,
“plaintiff was working on the ground level and was not exposed to any falling objects, nor did the work he was tasked with performing expose him to an elevation differential hazard for which a safety device should have been employed.”
In Sanchez, as plaintiff was lifted into the air, plaintiff obviously suffered a fall from a height. Plaintiff was lifted to a height by an unforeseeable event of a cable, which was part of the debris being cleared by the Bobcat, catching onto his foot. The decision in the case is that none of the safety devices enumerated in 240(1) would have prevented the accident. It is another situation where a fall from a height was outside 240(1) protection.
September 20. Worker Fell While Descending Permanent Staircase. 240(1) Dismissed as Permanent Staircase Was Not The Only Means of Accessing Work Area.
A defense to a 240(1) cause of action is where the worker suffers a fall on a permanent staircase. As the staircase is permanent part of the building, such a fall is outside the 240(1) protection. Exception is where the permanent staircase was the only means of access to the work area. As such, if there were other no other staircases accessing the work area, 240(1) would not be dismissed. In Franzoso v. 1461-1469 Third Ave. Owner LLC, 2024 NY Slip Op 33260(U), Supreme Court, Kings County, Hon. Ingrid Joseph, plaintiff was descending a permanent staircase, he grabbed a handrail on the wall and the handrail started to come off the wall. The entire handrail then detached from the wall, causing the fall down the stairs.
Here, there was a fall from a height because a handrail was not secured to a wall. Where the handrail was on a permanent staircase, and caused the fall from a height, such defect is not considered where the location was a permanent staircase. However, if that permanent staircase is the only means of access to the worker’s work area, the fall is within the protection of 240(1). In Franzoso, plaintiff failed to show the subject stairwell was the only means of accessing the work area. Note that a fall from a temporary staircase at a work site, is within the protection of 240(1).
September 20. Industrial Code 23-1.7(f) Not Apply to Permanent Staircase. Applies to Temporary Staircases Built Specifically For Construction Work.
23-1.7(f).
Stairways, ramps or runways shall be provided as the sole means of access to working levels above or below ground except where the nature or the progress of the work prevents their installation in which case ladders or other safe means of access shall be provided.
In Franzoso v. 1461-1469 Third Ave. Owner LLC, 2024 NY Slip Op 33260(U), Supreme Court, Kings County, Hon. Ingrid Joseph, plaintiff was descending a permanent staircase, he grabbed a handrail on the wall and the handrail started to come off the wall. Judge Jospeh held that 23-1.7(f) does not apply to “pre-existing structures such as the stairway at issue.”
September 20. Industrial Code 23-1.15 Not Apply as Such Code Not Require Safety Railings.
23-1.15.
A safety railing shall consist as a minimum of an assembly constructed as follows:
- A 2 inch by 4 inch horizontal hand rail, not less than 36 inches nor more than 42 inches above the walking level, securely supported by 2 inch by 4 inch vertical posts at intervals of not more than 8 feet.
- A 1 inch by 4 inch horizontal midrail.
- A 1 inch by 4 inch toeboard except when such safety railing is installed at grade or ground level or is not adjacent to any opening, pit or other area which may be occupied by any person.
- The hand rail of every safety railing shall be smooth and free from splinters and protruding nails.
Other material or construction may be used for safety railings required by this Part provided such assemblies have equivalent strength and assure equivalent safety.
In Franzoso v. 1461-1469 Third Ave. Owner LLC, 2024 NY Slip Op 33260(U), Supreme Court, Kings County, Hon. Ingrid Joseph, it was held 23-1.15 concerns the requirements for proper assembly of safety railings, as opposed to a temporary handrail, which is what plaintiff claimed fell off the wall of a stairwell.
Permanent Staircase. 240(1) Dismissed.
Comment. Permanent staircase not designed as safety device to afford protection from elevation related risk & therefore outside protection of 240(1).
Permanent staircase, which is sole means of access to work area, may result in 240(1) liability.
Permanent staircase, which is not sole means of access to work area, 240(1) dismissed.
First Dept.
240(1) Dismissed. Staircase Fall. Not Gravity Related Accident.
First Dept. 2011. 240(1) Dismissed. Accident Not Result of Elevated Height. Accident occurred on same level of work area. Working as bricklayer foreman at work site of a hotel, plaintiff tripped & fell as he ascended temporary staircase from first floor to second floor of hotel. Temporary staircase between first & second floors was constructed such that top tread wedged under concrete slab forming the second floor. Plaintiff tripped on the edge of the slab, causing him to fall forward onto the floor. Accident not result of elevation related or gravity related risk. Accident resulted from hazard that was wholly unrelated to the risk which brought about need for the stairs in the first instance & result of usual & ordinary dangers at construction site. That plaintiff fell while at elevated level did not render the accident a result of elevation related risk as accident occurred on same level of plaintiff’s work area. Reyes v. Magnetic Constr., Inc., 83 AD3d 512;
First Dept. 2010. 240(1) Dismissed. Not Gravity Related Accident. 3-Step Stairway. Plaintiff stepped on 3 step staircase in order to descend from basement floor into a pit containing refrigeration unit he was to perform work on. Middle step, which was 18 inches above the floor, broke. 240(1) dismissed as 3 step stairway neither a safety device nor a temporary stairway to protect a worker from elevation-related risk within meaning of 240(1). Such middle step was not of sufficient height for protection of 240(1) nor was plaintiff exposed to type of extraordinary risk for which 240(1) was designed. Here, accident stemmed from breaking of a step on a stairway & not by gravitational force. Such minor elevation not call for any of safety devices enumerated in 240(1). Lombardo v. Park Tower Mgt. Ltd., 76 AD3d 497;
Second Dept.
240(1) Dismissed
Fall on Permanent Staircase
Second Dept. 2024. 240(1) Dismissed. Plaintiff tasked of removing garbage & debris from fifth floor of apartment building & transporting it to the first floor. Plaintiff used an interior staircase to travel from fifth floor to first floor. He slipped on the staircase on demolition or construction material, causing a fall. The permanent staircase from which plaintiff fell was a normal appurtenance to the building & was not designed as a safety device to protect from elevated risk. Verdi v. SP Irving Owner, LLC, 2024 NY Slip Op 02721;
Stairwell Being Used as Passageway
Second Dept. 2023. 240(1) Liability Dismissed. Fall Occurred on Stairway Being Used as Passageway. Plaintiff tripped after stepping into a gap between the top step of a staircase & landing. Accident not occur as result of elevation related or gravity related risk. As plaintiff was using the stairwell as a passageway, no 240(1) liability. Castro v. Wythe Gardens, LLC, 2017 AD3d 822;
Second Dept. 2010. Section 240(1) Dismissed. Plaintiff, who was preparing to install insulation at a home, injured when set of stairs connecting first floor to garage collapsed beneath him as he stepped onto it. As stairs not being utilized as ladder, scaffold, hoist or other safety device for benefit of plaintiff in his work & plaintiff was using it as passageway, no protection under 240(1). Salcedo v. Swiss Ranch Estates, Ltd., 79 AD3d 843;
Fall on Permanent Staircase. 240(1) Dismissed.
Second Dept. 2018. 240(1) Dismissed. Plaintiff Injured Carrying Materials Down Staircase. Plaintiff & coworker carrying heavy beam on their shoulders from truck to inside of building. Once inside the building, they had to walk down a set of steps. Plaintiff felt his knee “go forward” nearing the bottom of steps & suffered knee injury. Plaintiff failed to show accident caused by elevation related hazard within 240(1). Evidence established cause of accident was weight of the beam plaintiff carrying. Mere fact accident resulted from weight of heavy object being lifted or carried not 240(1) liability. Where a fall occurs from a permanent staircase, no 240(1) liability. Sullivan v. NY Athletic Club, 162 AD3d 950;
Second Dept. 2011. 240(1) Dismissed. Trip on Steps. While working as site safety observer in connection with construction of skyscraper owned by One Bryant, plaintiff fell while descending last step of a stairway which was twice height of other steps & unable to steady himself as handrail not extend to that last step. Vella v. One Bryant Park. LLC, 90 AD3d 645;
Temporary Staircase
240(1) Dismissed
Temporary Staircase Attached to Building. No Elevation Risk.
Second Dept. Temporary Staircase. “Other Devices.” 240(1) Dismissed. 2005. Where fall occurs from a permanent stairway, no 240(1) liability. Here, plaintiff contended it was temporary stairway & thus fell within the catchall phrase of 240(1) of “other devices” & as such requiring proper protection. However, temporary stairway attached & secured to building. As accident not result from elevation hazard, 240(1) not imposed. Gallager v. Andron Constr. Corp., 21 AD3d 988;
September 19. Homeowner’s Exemption For 240(1) Claim. Worker Falling Off Roof. Defendant No Intent to Use Home For Commercial Purposes.
Second Dept. 2024. Plaintiff, a carpenter for MCJM, while working at home renovation project was installing a bracket on home’s sloped ridge when he lost his balance, slid down the side of the roof, falling to the ground. 520X Residential owned the house and hired plaintiff’s employer MCJM to serve as project’s GC and hired Hall & Wright to serve as construction manager. The homeowner’s exemption serves to protect residential homeowners lacking in sophistication or business acumen from their failure to recognize the necessity of insuring against the strict liability imposed by 240(1) and 241(6). However, the exemption not apply to homeowners using their one or two family houses for commercial purposes.
Decision stated, “For example, renovating a residence for resale or rental plainly qualifies as work being performed for commercial purposes.” For a homeowner to be entitled to homeowner’s exemption, homeowner must show:
The work was conducted at a residence for only 1 or 2 families, and
That homeowner not direct or control the work. 520X, through deposition testimony of Ms. Silverman, a member of 520X, that she intended to reside in the home with her husband, upon completion of the project. Argueta v. Hall & Wright, LLC, 2024 NY Slip Op 04445;
September 19. Industrial Code 23-9.6. Scissor Lift Not Aerial Basket.
In McGill v. Whitney Museum of Art, 2024 NY Slip Op 33200(U), Supreme Court, NY County, Hon. Hasa Kingo, plaintiff injured while operating a scissor lift. Plaintiff argued a scissor lift was an aerial basket, making 23-9.6 applicable. 23-9.6 governs operation of aerial baskets. 23-1.4(b)(2) defines aerial baskets as “vehicle mounted, power operated devices with an articulating or telescoping work platform designed for use at elevated working positions. The decision held that where scissor lifts used to gain elevation, rather than to hoist materials, were scaffolds under the Industrial Code. As such, the scissor lift did not meet the definition of aerial basket. Further, OSHA classifies scissor lifts as scaffolds. 23-9.6 dismissed.
September 16. 240(1) Dismissed as Plaintiff Struck by Temporary Pipe Being Removed during Demolition.
Urena-Quezada v. 2019 v. Borden Ave. Owner, LLC, 2024 NY Slip Op 33195(U), Supreme Court, Queens County, Hon. McKetney Butler.
September 15. Whether §240(1) Requires a “Falling Object” Striking a Worker.
Plaintiff employer as plumber/laborer at a building where he & another worker were lowering sprinkler pipes from the first floor to a lower landing. A temporary opening within a wall on first floor was used to lower sprinkler pipes down to the lower landing. As each pipe was pushed through the opening, plaintiff would grab the end of the pipe to control its descent. Once the majority of the pipe passed through the opening the weight of the pipe was bearing upon plaintiff. Plaintiff given no rope or hoist to control the pipe as it was lowered. The force of a descending pipe knocked plaintiff backwards and the pipe crushed plaintiff’s right hand.
Hon. Wayne Saitta of Supreme Court, Kings County, held, “the object did not fall onto plaintiff, but the force of gravity on the object plaintiff was holding, was sufficiently great to injure plaintiff.” Metal sprinkler pipe was 10 feet long and 6 inches in diameter, weighing 60-70 pounds. Plaintiff’s liability expert, Nicholas Bellizzi, estimated the pipe was 93 pounds. Bellizzi opined the pipe should have been lowered by use of a rope or carabiner clip, defined by Wikipedia as a metal loop with a spring-loaded gate used to quickly and reversibly connect components. Songqian Li v. Pride Hotel LLC, 2024 NY Slip Op 33142(U);
The decision cites Runner v. NY Stock Exch., 13 NY3d 599, the 2009 Court of Appeals’ decision holding 240(1) applied where a heavy reel of wire was rolled down a set of 4 stairs. As the motion court in Songqian wrote as to the Runner decision, “The force of the reel [of wire] descending pulled the plaintiff into the bar injuring him.” In Runner, plaintiff was not carrying the reel of wire down the staircase. Rather, the reel of wire became a “falling object” at some point while it was being rolled down the staircase and workers lost control.
In Songqian, the sprinkler pipe was never a “falling object” as it was always held by plaintiff. To be a “falling object” the pipe must have fallen a distance, de minimis or otherwise, and then struck the worker to be within the protection of 240(1). That the weight of the pipe may have caused plaintiff to lose control of the pipe, it was never a falling object as plaintiff continued to hold the pipe.
In Songqian, plaintiff lost control of the pipe as he carried the pipe. The pipe never fell. The pipe just went in a different direction than intended by plaintiff. Accident in Songqian was the result of a general workplace hazard, which is not actionable as a matter of law.
September 15. Party Indemnified Even if Partially Negligent.
In Pilapanta v. Hudson 888 Owner LLC, 2024 NY Slip Op 33198(U), Supreme Court, NY County, Hon. Paul Goetz, the indemnification language provided indemnity “whether or not caused in part by the active or passive negligence or other fault of a part indemnified hereunder unless such claim, cost, expense or liability is caused by the sole negligence of a party indemnified thereunder.”
Based on such contractual language, the decision held
Defendants/third party plaintiffs do not need to establish their freedom from negligence … they only need to demonstrate that the liability was not caused solely by their negligence.
Contractual indemnification is determined by the language of the indemnification clause. NY courts hold an indemnification clause cannot indemnify a party for its own negligence. But a party can be indemnified for its partial negligence. Brooks v. Judlau Contr. Inc., 11 NY3d 204.
PARTIAL INDEMNIFICATION
Comment. While an entity is liable for a construction accident, such entity may seek partial indemnification from another entity that is also at fault. As such, indemnification is available to an entity that is only partially at fault for an accident. Court of Appeals, in Brooks v. Judlau held a GC could seek partial indemnification from plaintiff’s employer where employer failed to provide its employee with necessary safety equipment while working at elevated height. So even where the GC is negligent, such negligence not prevent GC from seeking partial indemnification from plaintiff’s employer.
Written contract for partial indemnification not violate GOL 5-322.1.
Court of Appeals
Court of Appeals. 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;
First Dept.
First Dept. 2024. An owner of GC may seek contractual indemnification from a subcontractor although it may have been partly at fault for an accident as long as the indemnification provision at issue is prefaced by language specifying that the duty extends “to the fullest extent of the law,” as in this case, thereby precluding any potential violation of General Obligations Law §5-322.1. Munoz v. JDS Seagirt LLC, 227 AD3d 547;
First Dept. 2023. Tishman, project GC, entitled to contractual indemnification against US Roofing, plaintiff’s employer. Plaintiff injured in course of work for US Roofing. Conditional summary judgment for contractual indemnification awarded as evidence that Tishman’s negligence, if any, not sole proximate cause of the accident & extent of indemnification will be dependent upon any negligence by Tishman found to have contributed to accident. McKinney v. Empire State Dev. Corp., 217 AD3d 574;
First Dept. 2023. Issue of Fact. Steel tubing being hoisted came loose, falling 11 stories, striking plaintiff. Although sidewalk bridge was in place, steel tubing fell through 3 foot gap between sidewalk bridge & building. Rockledge built sidewalk bridge. Noble, as GC, coordinated trades & evidence showed plaintiff was permitted to work on what should have been “controlled access area” in which workers not permitted to enter while steel tubing being hoisted. Owner & GC entitled to contractual indemnification from Rockledge as accident arose out of Rockledge’s work. While Rockledge asserted evidence of GC’s negligence, indemnity clause provides for partial indemnification by including savings language & thus not void under GOL 5-322.1. Dejesus v. Downtown Re Holdings LLC, 217 AD3d 524;
First Dept. 2019. As the indemnification provisions are limited to extent of law, defendant may be entitled to indemnification even if it is found partially negligent. Ramirez v. Almah, LLC, 169 AD3d 508;
First Dept. 2015. Lessee ATNY had right to be indemnified per its contract with GC, which stated, “to the fullest extent permitted by law, so long as the claim arose out of GC’s negligent or intentional acts.” As such, even if lessee ATNY found to be partially responsible for accident, ATNY entitled to indemnification for percentage of any award arising not from its own negligence, but rather that of the GC. As no evidence whether ATNY & GC negligent, court granted conditional indemnification. Maggio v. 24 W. 57 APF, LLC, 134 AD3d 621;
Second Dept. 2023. While performing demolition work, plaintiff struck by falling lead sprinkler pipe. GOL §522.1 permits a partially negligent contractor to seek contractual indemnification from its subcontractor so long as indemnification provision not purport to indemnify GC for its own negligence. Citnalta established it was entitled to contractual indemnification from LJC for 50% of the $3.9 million settlement to plaintiff. Citnalta was not indemnified for its own negligence. As such, 5-322.1 was not violated. Feliz v. Citnalta Constr. Corp., 217 AD3d 750;
Third Dept.
Third Dept. 2009. Indemnification clause required Smith to indemnify defendant for “damages, losses and expenses … but only to extent caused in whole or in part by negligent acts or omissions of Smith.” As such partial indemnification agreements do not indemnify promisee for losses attributable to the promisee’s own negligence, it is not in violation of GOL 5-322.1. As such, matter must have apportionment hearing to determine amount of indemnification to which defendant is entitled. Also, the clause obligated Smith to indemnify defendant only to “fullest extent permitted by law.” Such limiting language alone operates to insulate the clause from 5-322.1 violation. Ostuni v. Town of Inlet, 64 AD3d 854;
September 14. While OSHA Regulations Not a Predicate For 241(6) Cause of Action, Can Be Considered as Evidence in §200 Cause of Action.
In McGill v. Whitney Museum of Am. Art, 2024 NY Slip Op 33127(U), noted the above statement, citing, Landry v. Gen. Motors Corp., Cent. Foundry Div., 210 AD2d 898 (4th Dept. 1994). Cited OSHA regs were 29 CFR 1926.453(b)(2)(iv), which prohibits workers from climbing on the edge of aerial basket and 29 CFR 1926.1051(a), which requires stairways or ladders where there is a break in elevation of 19 inches or more. As these regs directly relevant to safety issues plaintiff encountered, they may be introduced as evidence of negligence. Hon. Hasa Kingo, Supreme Court, NY County.
OSHA Standards Not Support 241(6) Cause of Action. Only Industrial Codes Support a 241(6) Cause of Action.
Comment. If OSHA violation is alleged in support of 241(6) claim, without any specific Industrial Codes alleged, 241(6) claim is dismissed. OSHA provides no private right of action. OSHA is for employers. If there is a 241(6) cause of action and plaintiff only cites OSHA violation, not an Industrial Code, the 241(6) cause of action is dismissed.
First Dept. 2021. Alberto v. Di Sano Demolition Co., 194 AD3d 607; 2014. Pantovic v. YL Realty, Inc., 117 AD3d 538; 1999. Schiulaz v. Arnell Construction Corp., 261 AD2d 247;
Second Dept. 2019. Graziano v. Source Bldrs. & Consultants, LLC, 175 AD3d 1253; 2018. Marl v. Liro Engrs., Inc., 159 AD3d 688; 2005. Cun-En Lin v. Holy Family Monuments, 18 AD3d 800; 1999. Ferreira v. Unico Service Corp., 262 AD2d 524; 1997. Greenwood v. Shearson Lehman Hutton, 238 AD2d 311; 1995. Vernieri v. Empire Realty Co., 219 AD2d 593;1999. Ferreira v. Unico Service Corp., 262 AD2d 524;
Fourth Dept. 2000. Millard v. City of Ogdensberg, 274 AD2d 953; 1996. Williams v. White Haven Memorial Park, Inc., 227 AD2d 923; 1995. Fox v. Hydro Dev. Corp., 222 AD2d 1124; 1995. McSweeney v. Rochester Gas Electric Corp., 216 AD2d 878; 2004. Fisher v. WNY Bus Parts, Inc., 12 AD3d 1138; 1995. McGrath v. Lake Tree Village Associates, 216 AD2d 877; 1994. Landry v. General Motors Corp., 210 AD2d 898; 1993. Pellescki v. City of Rochester, 198 AD2d 762;
September 13. Plaintiff Sole Witness to Accident. Credibility Issues. Plaintiff’s Motion on 240(1) Denied in Ladder Fall.
Second Dept., Injai v. Circle F 2243 Jackson (DE), LLC, 2024 NY Slip Op 04380, plaintiff’s summary judgment motion on 240(1) was denied where plaintiff fell from a ladder and was only witness to the accident. Plaintiff claimed the ladder wobbled as it was not secured. Plaintiff testified using the same ladder 20-25 times that day without incident. Plaintiff was carrying forms for pouring concrete up a ladder. Defendant’s expert, Joseph Lucchesi, an engineer, reviewed photos of the ladder and opined it met OSHA standards. It was the expert’s opinion that where plaintiff was carrying heavy equipment while ascending the ladder, the accident occurred because plaintiff lost his balance, rather than the ladder wobbling. Plaintiff’s motion for summary judgment on 240(1) was denied.
Decision cited the rule, “Where a plaintiff is the sole witness to the accident and his or her credibility has been placed in issue, the granting of summary judgment on the issue of liability in favor of the plaintiff on a 240(1) cause of action is inappropriate.”
Here, defendant’s expert review of photos of the ladder and not inspecting the ladder, was cited in defeating plaintiff’s motion, along with plaintiff using the ladder 20-25 times without incident.
September 12. Cable Installer’s 240(1) Claim For Fall From Ladder Dismissed Against Building Owner. Owner No Knowledge. Owner Gave No Permission. Tenant Contracted. Abbatiello.
In Acevado-Espinosa v. RH 250 Sherman Ave., LLC, 2024 NY Slip Op 04365, Second Dept. following the Court of Appeals; precedent in Abbatiello v. Lancaster Studio Assoc., 3 NY3d 46 (2004), dismissed a cable installer’s 240(1) claim against the building owner as the cable installer was hired by the building superintendent, who was a tenant, without the knowledge or permission of the building owner. Even though plaintiff fell from a ladder, 240(1) dismissed against the owner.
Plaintiff in Acevado-Espinosa performed the work as part of his employment for cable installer company. To protect their employees such cable companies must obtain the written person and acknowledgment of the building owner to perform cable installation to a tenant’s apartment. However, by providing such permission, building owners are subjecting themselves to 240(1) liability. As such, the agreement between the tenant and cable company must include an indemnification clause indemnifying the owner for accidents arising out of the performance of such work.
September 12, 2024. Plaintiff Amending Bill of Particulars With an Industrial Code, Post Note of Issue. Need a Reasonable Excuse.
Plaintiff is allowed to amend the Bill of Particulars, pursuant to CPLR 3025, during discovery, including after defendants’ depositions. However, once the note of issue is filed, such amendment is no longer automatic. Rather, plaintiff must establish showing of
Length of time that elapsed after the party seeking the amendment was aware of the facts upon which the motion was predicated;
Whether a reasonable excuse for the delay was offered; and
Whether prejudice resulted from the delay, i.e., whether the Industrial Code is a new theory of liability.
In Benegas v. Ardsley Country Club, Inc., 2024 NY Slip Op 04368, the Second Dept., in addressing whether plaintiff could amend, post note of issue, the bill of particulars to add an alleged violation of Industrial Code 23-6.1(e), denied such amendment as plaintiff offered no excuse for the delay in seeking such leave. It was also denied as 23-6.1(e) “presented a new theory of liability.”
Motion To Amend Bill of Particulars to Assert Industrial Codes DENIED. Post
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;
September 12. Sub-Subcontractor’s Indemnity Obligations to Owner/GC. Whether Contractual Indemnification Obligation of Prime Contract Incorporated into Sub-Subcontract
Comment. Where a subcontractor, after entering into contract/agreement with a premises owner or GC, which contains indemnification clause obligating the subcontractor to indemnify the owner and/or GC for damages arising out of its work, then subcontracts out the work to sub-subcontractor, is sub-subcontractor obligated to indemnify the premises owner and/or GC?
Answer is whether the prime contract, i.e., the contract between the owner or GC with the subcontractor, is incorporated into the contract between the subcontractor & sub-subcontractor. Under NY law, indemnification clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by subcontractor.
Language Incorporating Prime Contract Into Sub-Subcontractor’s Contract.
Arising out of or in connection with any operations of the Contractor and/or its subcontractors to the extent resulting from any negligent act of commission or omission … or failure to comply with the provisions of the Agreement or of the Laws.
Purchase Order on its face identifies “Building Owner” & “Landlord” as indemnitee.
First Dept.
First Dept. 2022. Incorporated Into Sub-Subcontract. “Arising out of or in connection with any operations of the Contractor and/or its subcontractors to the extent resulting from any negligent act of commission or omission … or failure to comply with the provisions of the Agreement or of the Laws.” Based on such language the indemnity provision in the City/Haks contract is incorporated by reference into the Haks/JA subcontract. Substituting “JA” for “Contractor,” indemnity provision requires JA to indemnify City for damages incurred arising out of or in connection with any operations of the Contractor and/or its subcontractors. Winkleman v. Halmar Inter., LLC, 206 AD3d 458;
First Dept. 2020. Electrical contractor Schorr obligated to indemnify Structure Tone pursuant to the Blanket Insurance/Indemnity Agreement incorporated into its subcontract as accident arose from plaintiff’s performance of work as employee of Schorr. Rudnitsky v. Macy’s Real Estate, LLC, 189 AD3d 490;
First Dept. 2019. Incorporated Into Sub-Subcontract. Indemnification provision contained in AIA Document A201TM-2007 General Conditions of the Contract for Construction expressly adopted by reference & made part of contract documents. However, summary judgment denied to both parties as to indemnification provisions because of ambiguities in written contracts regarding which of Red Hook entities were engaged to do operative work covered by indemnification provisions. Castillo v. Big Apply Hyundai, 177 AD3d 473;
First Dept. 2018. Incorporated Into Sub-Subcontract. Purchase order on its face identifies “Building Owner” & “Landlord” as indemnitee. 1100 Associates owns the subject building. Purchase order also identifies “Owner” as indemnitee. While the identity of the “Owner” is not clear from the face of purchase order, that document incorporates by reference JT Magens prime contract with the “Owner.” JT Magens’ prime contract, in turn, is with HBO as net lessee of the building & “Owner.” Frank v. 1100 Ave. of the Ams. Assoc., 159 AD3d 537;
First Dept. 2011. Issue of Fact. Absence of Signed Document. Plaintiff, sheet metal worker employed by Met Sales, slipped & fell on construction debris in stairwell. Building owner & GC sought indemnification based upon a rider incorporated by reference into the purchase order. Met Sales denied it had agreed to be bound by such rider. GC failed to make a prima facie showing that unsigned documents called “Terms and Condition of the Purchase Order” & “Vendor Insurance Indemnification Rider” were part of the Purchase Order contracts. Issue of fact whether or when an indemnification agreement came into being, in the absence of a signed document, presents a question to be resolved by a jury. Ruane v. Allen-Stevenson School, 82 AD3d 615;
Not Incorporated Into Subcontract
First Dept. 2022. To the extent that P&T argues that we should infer that “Owner” has the same meaning as in the CRE/ST contract, that contract defines “Owner” not as Park or Tishman, but rather as CBRE, the tenant. In any event the CBRE/ST contract is not incorporated by reference nor is any exhibit to any of these documents. As the language of the parties is not clear enough here to enforce an obligation against ST or plaintiff’s employer, A-Val to indemnify P&T, and the court was unwilling to rewrite the contract and supply a specific obligation the parties themselves did not spell out, P&T’s motion for summary judgment for contractual indemnification was denied. Ruisech v. Structure Tone Inc., 208 AD3d 412;
First Dept. 2008. Not Incorporated Into Sub-Subcontract. NYCTA entitled to contractual indemnification from GC Granite & Granite entitled to such indemnification from Grand Mechanical. As no evidence accident resulted from negligence of NYCTA or Granite, there was no statutory bar to enforcement of such indemnity agreements. However, GC Granite’s claim for indemnity and breach of contract against Miller Proctor were dismissed as Granite & Miller Proctor were not in contractual privity with each other & purchase orders constituting the agreements between Grand Mechanical & Miller Proctor not make Granite a third party beneficiary, nor do such agreement incorporate by reference terms of subcontract between Granite & Grand Mechanical. Vargas v. NYC Tr. Auth., 54 AD3d 579;
Subcontractor Only Obligated as to Prime Contract Provisions Relating to Scope, Quality, Character & Manner of Work.
Comment. A subcontractor contracting the indemnify a GC, is not obligated to indemnify a premises owner. While the GC is obligated to indemnify the premises owner, the subcontractor entered into no contract with the premises owner. While the contract between the subcontractor and the GC incorporated the contract between the premises owner and the GC by reference, that is not enough for the subcontractor to indemnify the premises owner. Subcontractor is bound by the premises owner-GC contract but only to the scope, quality, character & manner of work to be performed by the subcontractor. As such, no obligation to indemnify the premises owner.
First Dept.
First Dept. 2008. Third party claim for contractual indemnification properly dismissed since the promise on which it was based is found in the main agreement between Carlyle & original contractor, to which third party defendant Exterior was not a signatory. While the construction subcontract signed by Exterior incorporated the main agreement by reference, under NY law, incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by subcontractor. Waitkus v. Metropolitan Hous. Partners, 50 AD3d 260;
First Dept. 2007. Third party claim for indemnification dismissed since the promises upon such claim are based are found in the main agreement, to which third-party defendants were not signatories. While it is true that construction subcontracts signed by third party defendants incorporated the main agreement by reference, under NY law, incorporation clauses in construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by subcontractor. Adams v. Boston Properties Ltd., 41 AD3d 112;
First Dept. 2007. The unsigned purchase order between subcontractor Hird & sub-subcontractor Woodworks, plaintiff’s employer, requires Woodworks to “receive, distribute and install all work” in accordance with the terms of the attached “trade subcontract” between Hird & GC. Court held that such language does not incorporate the provisions of the trade subcontract relating to indemnification. Incorporation clauses in construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by subcontractor. Nor is such incorporation accomplished by the portion of the “scope of work” clause of the trade subcontract requiring second-tier subcontractors like Woodworks to “maintain insurance equal to that required by this subcontract & be bound by the same terms and conditions as those of this subcontract. However, as there is no mention of indemnification & no reference to the trade subcontract, such obligation to obtain insurance does not require an obligation to indemnify. Goncalves v. 515 Park Avenue Condominium, 39 AD3d 262;
First Dept. 2001. Under NY law, incorporation clauses in construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to the scope, quality, character & manner of the work to be performed by the subcontractor. Further, there are no provisions in the prime contract expressly requiring subcontractors to purchase insurance or to indemnify Bell Atlantic, & extent to which subcontractors were bound by the Contract Documents expressly limited under Article 5(a)(4) of the contract’s General Terms and Conditions. Pursuant to Article 10 of the main contract, “Contract Documents” made no reference to documents pertinent to indemnification. Bussanich v. 310 East 55th St. Tenants, 282 AD2d 243;
Second Dept.
Second Dept. 2021. Centrifugal failed to meet its burden dismissing third party cause of action for contractual indemnification. Centrifugal subcontract referred to certain contract documents, including one titled “Subcontractor’s Indemnification & Insurance Requirements,” which was explicitly incorporated by reference into the Centrifugal subcontract. By failing to include these contracts with its moving papers, Centrifugal failed to establish that Centrifugal subcontract not place any duty upon Centrifugal to indemnify defendants. For similar reasons, Centrifugal failed to establish plaintiff’s accident not trigger any indemnification provision within these contract documents. Crutch v. 421 Kent Dev., LLC, 192 AD3d 982;
Bind Subcontractor Only as to Prime Contract Provisions Relating to Scope, Quality, Character & Manner of Work.
Second Dept. 2012. Contractual Indemnification Denied. Cause of action for indemnification based upon promise in prime agreement between subcontractor BTG & GC Hunt Bovis to which Gessin Electrical was not a signatory. Despite the fact construction subcontract signed by Gessin incorporated the main agreement by reference, under NY law, incorporation clauses in a construction subcontract, incorporating prime contract clauses by reference into a subcontract, bind a subcontractor only as to prime contract provisions relating to scope, quality, character & manner of the work to be performed by subcontractor. As such, provisions in prime agreement related to contractual indemnification for employee’s injuries & insurance procurement were not incorporated by reference into subcontract between Gessin & BTG & thus, defendants failed to establish existence of written indemnification agreement. Contractual indemnification denied. Persuad v. Bovis Lend Lease, Inc., 93 AD3d 831;
September 11. Worker Struck by Iron Pole Falling Over Was Within 240(1) Protection. Worker Engaged in Protected Activity of “Altering.”
Court of Appeals in Wilinski v. 334 East 92nd Hous. Dev. Fund Corp., 18 NY3d 1 (2011), held that a falling object, on the same level as plaintiff, that falls over, striking plaintiff, can be within 240(1) depending upon the force of gravity generated by the falling object. In Negron v. SHVO Inc., 2024 NY Slip Op 33108(U), plaintiff was struck by a “reshore brace” that was placed vertically with one end on the ground and the other on the ceiling. Such reshore braces were not secured but held in place by pressure. Plaintiff engaged in protected 240(1) activity of “altering” of a building or structure by installing an HVAC.
September 11. Subcontractor Remains Obligated to Indemnify Owner/GC Where It Subcontracted Out The Work. Accident 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;
September 10. 240(1) Violation Even Though Same Level Accident. Metal Sheets Fell From A-Frame Cart, Striking Plaintiff Who Was Moving The Cart. Wilinski.
As plaintiff was moving an A-frame cart belonging to another trade, the cart tipped over causing structural metal sheets to fall from the cart and strike plaintiff. Incident report provided the frame of the cart was too heavy due to the metal sheets. Hon. Mary Rosado held such accident resulted in 240(1) liability. The decision did not provide the distance the metal sheets fell nor engage in a force of gravity analysis in holding there was 240(1) liability. It was held plaintiff’s failure to move the cart with another worker amounted to comparative negligence, which is not actionable with a 240(1) liability.
The decision held “the improper placement (of the cart), and the fact it was left unattended, constitutes a violation of 240(1).” It is assumed such decision was premised upon the falling objects from the cart. Nyanteh v. 590 Madison Ave., LLC, 2024 NY Slip Op 33088(U).
While the metal sheets falling from the cart, could be within the Court of Appeals’ holding of Wilinski v. 334 E., 92nd Hous. Dev. Fund Corp., 959 N.E.2d 488 (2011), the weight of the metal sheets and how far they fell before striking plaintiff was required for a force of gravity analysis under 240(1).
September 10. Plaintiff’ Denied 240(1). Whether Fall From Ladder From Electric Shock Caused by Plaintiff’s Failure to Turn Off Electricity.
In Szczesiak v. Ervy Tenant, LLC, 2024 NY Slip Op 33090(U), Supreme Court, NY County, Hon. Paul Goetz, plaintiff was told to fix nonfunctioning lights on the 11th floor of a building. Plaintiff was an electrician employed by Crana Electric. To perform the work plaintiff had to access a panel within a ceiling hatch that was 11 feet off the ground. Plaintiff used a 10-foot A-frame ladder, which was the only available equipment suited for the work. When plaintiff was 3 steps from the top of the ladder and his torso was through the access panel, he received an electric shock to his hand, then felt the ladder wobble and shift, causing a fall.
While plaintiff testified he turned off the electricity before starting his work, plaintiff’s supervisor, Mr. Chavez, provided that when he arrived at accident site, the lighting and electricity in the area was on. Mr. Chavez also provided he tested the wires plaintiff was working on using a voltmeter and confirmed the wires were lived. Mr. Chavez provided Crana Electric employees were instructed to always turn off the electricity and to never work on live wires. Issue of fact whether plaintiff was sole proximate cause of accident by not turning off the electricity.
September 10. Comment on Evidence Admissibility of Hospital Records. Germane to Diagnosis & Treatment
Statements made by a plaintiff to an EMT at accident scene or to a nurse or physician in an emergency room may provide added accuracy as the accident only just occurred.
If records of EMT, hospital or plaintiff’s physician contain statements contradicting plaintiff’s deposition testimony of how the accident occurred, for a court to consider such statements, such statements must be germane to a plaintiff’s diagnosis and treatment. If plaintiff claims he was caused to fall at a work site because of lack of safety equipment and hospital records contain statements plaintiff simply lost his balance while working on a ladder, such statements are likely not to be considered by a court or a jury because the statements are not related to plaintiff’s diagnosis of injury and treatment.
If the hospital or other medical records contain statements that plaintiff lost footing on a ladder and fell 6 feet, landing on plaintiff’s head, such statements may be allowed into evidence as the 6 foot fall goes to severity of injury. Where losing one’s footing on a ladder is a defense to a 240(1) cause of action, such statement may raise an issue of fact defeating plaintiff’s motion for summary judgment on a 240(1) cause of action.
Statement Germane to Diagnosis or Treatment. Admissible Evidence.
Comment. Following statements of plaintiff were germane to diagnosis & treatment. Admissible evidence.
Height of ladder.
How plaintiff landed when falling.
Complaints of dizziness.
Infant’s fall from monkey bars.
Statement of plaintiff of running right before accident.
Position of plaintiff landing on ground upon a fall.
Twisted knee stepping off ladder.
First Dept.
Height of Ladder May be Germane to Diagnosis
First Dept. 2017. Whether the subject ladder was wooden or metal or whether plaintiff fell because it slipped or because the rung cracked was not germane to diagnosis or treatment of injuries resulting from the fall. However, height of ladder from which plaintiff fell may be germane to diagnosis or treatment. Mosqueda v. Ariston Dev. Group, 155 AD3d 504;
How Plaintiff Landed When Falling
First Dept. 2013. Plaintiff’s hospital record was properly admitted as business record under CPLR 4518. As plaintiff conceded, the statement at issue regarding how he landed when he fell germane to medical diagnosis or treatment. Its admission was therefore proper. Berrios v. 735 Avenue of Americas, LLC, 103 AD3d 472;
How Plaintiff Fell Exiting Bus Germane to Diagnosis & Treatment
First Dept. 2011. With unrefuted testimony of plaintiff’s medical expert that a medical record entry, reflecting plaintiff’s statement to a hospital personnel that his injuries occurred when he fell on his back due to a sudden, violent movement of a bus he was exiting, was relevant to diagnosis & treatment, such record was admissible into evidence. Phillips v. NYC Tran. Auth., 83 AD3d 473;
Manner in Which Accident Occurred Germane to Diagnosis
First Dept. 2010. Plaintiff failed to demonstrate that relevant portions of medical records submitted by defendants in opposition to plaintiff’s motion constituted inadmissible hearsay. Statements in the records as to the manner in which the accident occurred were germane to the diagnosis and/or treatment of plaintiff & were properly considered as business records. Kamalov v. BIA Group, LLC, 79 AD3d 1101;
First Dept. 2010. Issue of Fact. Lightheadedness. Decedent alleged the ladder on which he was standing while painting a store “shook slipped and collapsed.” Issue of fact raised by owner denying supplying ladder to plaintiff as well as medical records suggesting accident caused by lightheadedness. Wilson v. Yemen Realty Corp., 74 AD3d 54;
Twisted Knee Stepping Off Ladder
First Dept. 1998. Hospital record included a “patient statement” as to how the injury occurred: “I twisted my knee after I stepped off the ladder.” Statement is clearly relevant to the diagnosis & treatment of plaintiff’s injuries & therefore admissible as part of hospital record. Plaintiff’s description as to how the injury occurred is relevant not only to the treatment of his knee condition, but also to the determination of the presence and extent of injuries to other parts of the body. Eitner v. 119 West 71st Street Owners Corp., 253 AD2d 641;
Second Dept.
Dizziness
Second Dept. 2022. Plaintiff fell through a broken step on a public staircase in multi-family building. Entries in medical records from Kings County Hospital relating to complaints of dizziness by plaintiff a few days after her fall were allowed into evidence. A hearsay entry in hospital record that is germane to diagnosis or treatment is admissible under the business records exception to the hearsay rule as they indicated plaintiff herself reported to hospital personnel that she had been experiencing dizziness since March 2014, information that was germane to her treatment at that time. Fraser v. 147 Rockaway PKW, LLC, 203 AD3d 894;
Infant Plaintiff’s Statement of Fall From Monkey Bars Germane to Treatment
Second Dept. 2014. Infant plaintiff fell from monkey bars at schools. Records provided that plaintiff told ER physician that she fell from the monkey bars. Such statement germane to plaintiff’s medical treatment on the date of the accident. Nelson v. Friends of Associated Beth Rivka Sch. for Girls, 119 AD3d 536;
Statement of Plaintiff Running Right Before Accident
Second Dept. 2000. Germane to Diagnosis & Treatment. Lower court erred in redacting from ER record, which was otherwise admissible as a business record, a statement that plaintiff had been running immediately prior to sustaining her injury. As the business of a hospital is to diagnose & treat its patients’ ailments, a narration of the accident causing the injury is inadmissible if not germane to diagnosis or treatment. However, a patient’s explanation as how the accident occurred may be helpful to an understanding of medical aspects. Wright v. NYCHA, 273 AD2d 378;
Second Dept. 2012. Hospital records raised issue of fact whether object plaintiff tripped on was integral to work pursuant to 23-1.7(e)(1). Sanders v. St. Vincent Hosp., 95 AD3d 1195;
Statements Not Germane to Treatment. Inadmissible Hearsay.
Plaintiff lost balance & fell off ladder.
Ladder slipped out from underneath plaintiff.
First Dept.
Lost Balance on Ladder
First Dept. 2024. Defendant not establish statements contained in medical records that plaintiff lost his balance & fell off a ladder, were germane to plaintiff’s diagnosis & treatment or were directly attributable to plaintiff. Also, a statement that plaintiff lost his balance & fell not contradict plaintiff’s testimony that he fell because ladder suddenly moved. Rodas-Garcia v. NYC United LLC, 225 AD3d 556;
Ladder Slipped Out
First Dept, 2023. Ladder slipped out from underneath plaintiff. Court redacted a notation in plaintiff’s hospital records as to the manner in which plaintiff’s accident occurred. Such notation neither germane to diagnosis & treatment of plaintiff’s injuries nor directly attributable to plaintiff. Marquez v. 171 Tenants Corp., 220 AD3d 575;
Not Establish Records Germane
First Dept. 2023. Entries made in plaintiff’s medical records, dated one day & one week after the accident, neither germane to treatment or diagnosis of plaintiff’s injuries nor admissible as admission against interest. Cafisi v. L&L Holding Co., LLC, 219 AD3d 1215;
Not Establish Certified Records Germane
First Dept. 2021. Although plaintiff’s medical records were certified, Choice not establish that the statements contained in them on which it relied either were germane to plaintiff’s diagnosis & treatment or are directly attributable to plaintiff. Greca v. Choice Assoc. LLC, 200 AD3d 415;
First Dept. 2021. Plaintiff standing on steel tube on the third floor of what was to be a theater, 12 feet above second floor. While receiving a piece of decking from coworker, steel tube suddenly shifted causing him to fall backward onto a tube on the same level. Defendants failed to raise issue of fact as to manner of the accident. ER record & plaintiff’s statement therein about the manner in which his accident occurred not germane to plaintiff’s diagnosis & treatment. Ging v. FJ Sciame Constr. Co., 193 AD3d 415;
Accident Cause Was Unsecured Planks
First Dept. 2015. 240(1) liability held as plaintiff’s deposition testimony established that a proximate cause of the accident was unsecured scaffold planks which shifted when he stepped on the platform as 3 of the required planks were missing. Inconsistent statement in hospital records as to how the accident occurred not raise issue of fact as it is not germane to plaintiff’s diagnosis & treatment. Kristo v. Board of Education of City of NY, 134 AD3d 550;
Jumped or Pushed
First Dept. 2014. Hearsay entries as to the cause of injury contained in medical record come into evidence under the business records exception if they are germane to the treatment or diagnosis of plaintiff’s injuries. Also, such entry may be admissible as an admission, but only if there is evidence connecting the party to the entry. Here, such entries were neither germane to treatment or diagnosis , nor were they admissions. No evidence medical doctors needed to know whether plaintiff jumped or was pushed from the fence in order for doctors to determine what medical testing he needed upon admission to the hospital. The entries were not admissions. Although the Lincoln Medical and Mental Health Center Admission Assessment form has a box checked that “patient” is the source of the information, the particular entry on that record “he jumped off the fence” is not clearly a statement attributable to or a quote of plaintiff. No other evidence identifies plaintiff as being the source of this information. Such entries not admissible evidence. Benavides v. City of NY, 115 AD3d 518;
Cause of Accident
First Dept. 2010. Plaintiffs asserted stopped by apartment to observe floor finishing performed by their cousin, who was hired by defendant. Fumes from polyurethane the cousin applied to the floor ignited, causing injury. Hospital & fire department records indicate that plaintiffs admitted to ambulance attendants, hospital staff & fire department official that they applied polyurethane when fire broke out. As such admissions not germane to the diagnosis or treatment of plaintiff’s injuries, such records not admissible under the business records exception to hearsay rule. Preldakaj v. Alps Realty of NY Corp., 69 AD3d 455;
First Dept. 2002. Statements in hospital record attributed to plaintiff’s mother, also a plaintiff, that the infant was struck by a thrown rock not admissible as mother not witness the occurrence but based her statements on what she heard from persons other than the infant. Nor did such statements qualify as business records since defendant failed to adduce evidence showing that statements were germane to treatment of diagnosis. Rivera v. City of NY, 293 AD3d 383;
First Dept. 1999. As disputed cause of plaintiff ‘s injury was whether plaintiff fell from a height of 8 feet or jumped from that height, not germane to plaintiff’s diagnosis or treatment, history portion of the hospital record inadmissible evidence. Quispe v. Lemle Wolff, Inc., 266 AD2d 95;
Second Dept.
Second Dept. 2019. Plaintiff claimed A-frame ladder on which he was standing collapsed. Defendant submitted records from Southhampton Hospital which contained notations that plaintiff lost his balance & fell from a scaffold. However, the notations in the hospital records were not attributed to plaintiff. As defendant failed to offer evidence sufficiently connecting the plaintiff to statements in the hospital records, party admission exception to hearsay rule not apply. Also, none of the notations germane to plaintiff’s diagnosis or treatment. Gomez v. Kitchen & Bath by Linda Burkhardt, Inc., 170 AD3d 967;
Second Dept. 2014. Plaintiff slipped & fell in a supermarket. Statements in the hospital record by plaintiff that accident not occur on defendants’ premises not germane to plaintiff’s diagnosis & treatment. Records not admissible. Nelson v. Bogopa Serv. Corp., 123 AD3d 780;
Second Dept. 2008. Statements in hospital & ambulance records were inadmissible hearsay as they related to the manner of accident & were not germane to plaintiff’s diagnosis & treatment. Such statements contradicted defendant’s account of how accident occurred. Allowance of such statements not harmless. Such statements went to ultimate issue determined by the jury as to how accident occurred. Carcamo v. Stein, 53 AD3d 520;
Second Dept. 1995. Hospital record containing toxicology report was not allowed into evidence as such report not germane to plaintiff’s diagnosis or treatment. Hatton v. Gassler, 219 AD2d 697;
Fourth Dept.
Fourth Dept. 1998. Both the hospital record & incident report purported to relate what plaintiff told the nurse after her daughter fell from examining table. Nurse admitted at trial she did not recall exactly what plaintiff said when she described the accident. Nurse admitted what was written in incident report was only the nurse’s understanding of how accident occurred. Entry in hospital record and incident report not germane to treatment or diagnosis & as such admissible under business records exception. Musaid v. Mercy Hospital of Buffalo, 249 AD3d 958;
Fourth Dept. 1993. Not Admissible. Not Germane to Treatment. It is well settled an entry in hospital record comes within statutory business records rule only if it is relevant to diagnosis or treatment of patient’s ailment. The history portion of the hospital record as it relates to acts & occurrences not relevant to diagnosis or treatment of the patient are inadmissible. Here, the information in medical records concerning precise cause of plaintiff’s fall not relevant to the diagnosis or treatment & should not have been admitted into evidence. Passino v. DeRosa, 199 AD2d 1017;
September 9. Subcontractor’s Failure to Procure Insurance & Ensuing Breach of Contract Claim.
An owner or general contractor asserts a breach of contract where a subcontractor fails to procure insurance which names the owner and/or GC as an additional insured (AI). In Nyanteh v. 590 Madison Ave., LLC, 2024 NY Slip Op 33088(U), Hon. Mary Rosado, subcontractor provided a blanket AI endorsement showing third -party plaintiffs “should be considered AIs under Eclipse’s policy. However, the entire policy was not provided. As such, it could not be determined whether Eclipse obtained insurance on a primary and non-contributory basis. AI endorsement did not show whether such requirement was met. Also, no party produced correspondence from the carrier explaining the denial of coverage. As such, breach of contract claim not dismissed.
September 9. Past & Future Pain & Suffering Awards of Appellate Courts & Post Trial Motions
Herniated Discs. Lumbar Surgery.
First Dept.
First Dept. 2021. Abreu-DePena v. Weber, 190 AD3d 512;
Trial Court. Supreme Court, Bronx County;
Herniations at C3-4, C6-7 and L2-L3 through L4-L5. Lumbar laminectomy with insertion of titanium screws and rods; a 2 level cervical fusion & left shoulder arthroscopy.
Jury Award. $100,000 for past pain & suffering. $500,000 for future pain & suffering.
Appellate Court increased award for past pain & suffering to $1 million. Increased award for future pain & suffering to $2 million over 33.4 years.
First Dept. 2020. Register v. SAS Morrison LLC, 189 AD3d 59;
Trial Court. Supreme Court, Bronx County.
Ceiling collapse;
Herniated discs requiring 2-day spinal fusion surgery. Right ankle tendon and ligament tears.
Jury Award. $1 million for past pain & suffering. $6 million for future pain & suffering.
Appellate Court affirmed award for past pain & suffering. Reduced award for future pain & suffering from $6 million to $2 million.
First Dept. 2015. Amacio v. State of NY, 130 AD3d 549;
Trial Court. Court of Claims.
Plaintiff standing on divider protector next to water hose pouring cement when a vehicle struck the hose causing a fall of 5 feet to concrete below.
Spinal fusion surgery & permanent & partial disability.
Appellate Court held $800,000 settlement reasonable.
First Dept. Trial Court. Supreme Bronx. 2019. Reinoso v. NYC Transit Auth., 2019 NY Slip Op 31665 (U);
Plaintiff fell exiting a bus.
Disc herniation at C5-6. Surgery to remove the C5-6 disc. It was replaced with carbon fiber device called a cage. Cage attached with a plate & 2 screws, secured by rods with 6 screws in 3 bones with 2 rods. Screws will never be removed. Disc herniations at L3, L4, & L5 resulting in lumbar laminectomy, discectomy & fusion. Arthroscopic surgery to left shoulder. Underwent knee replacement surgery.
Jury Award. $5 million for past pain & suffering. $319,000 for future pain & suffering.
Trial Court reduced award for past pain & suffering to $2.7 million. Increased future pain & suffering to $1.4 million.
First Dept. Trial Court. Supreme Court, Bronx County. 2015. Mata v. City of NY, 124 AD3d 466;
Accident: tripped over subway grate.
27 year old. Laminectomy with fusion surgery to lower back. Able to continue performing her full time job of owning & operating day care center.
Jury Award. $2 million for past pain & suffering. $3.5 million for future pain & suffering over 50 years.
Appellate Court reduced past pain & suffering award to $1 million. Reduced future pain & suffering award to $2 million.
First Dept. 2013. Williams v. City off NY, 105 AD3d 667;
Trial Court. Supreme Court, Bronx County.
Accident. While working as lead & asbestos inspector during renovation of subway station, he fell through wood planks.
Discectomy & then fusion surgery resulting in removal of L4-5 disc. Underwent discogram; IDET & multiple epidural injections.
Jury Award. $1.2 million for past pain & suffering. $2 million for future pain & suffering over 15 years.
Appellate Court reduced future pain & suffering award to $1.2 million.
First Dept. 2011. Stewart v. NYC Tr. Authority, 82 AD3d 438;
Trial Court. Supreme Court, Bronx County.
Slip & fall on steps.
Laminectomy & fusion of vertebrae, with insertion of metal plates & screws. Also, compression fracture of thoracic spine; lumber laminectomy with fusion & insertion of metal screws & struts. Baclofen pump surgically implanted to pump medication to his legs on continuous basis to prevent muscle spasm.
Jury Award. $2 million for past pain & suffering. $2.7 million for future pain & suffering over 20 years.
Appellate Court affirmed jury award.
First Dept. 2011. Ramos v. NYC Tr. Auth., 90 AD3d 492;
Trial Court. Supreme Court, Bronx County.
59 year old. Multiple disc herniations. 4 years after accident had combined discectomy, laminectomy & spinal fusion of lumbar spine with insertion of metal plates & screws.
Jury Award. $270,000 for past pain & suffering. $325,000 for future pain & suffering over 9 years.
Appellate Court affirmed jury award.
First Dept. 2011. Stewart v. NYC Tran. Auth., 82 AD3d 438;
Trial Court. Supreme Court, Bronx County.
Slip & fall on steps.
Laminectomy & fusion of vertebrae with insertion of metal plates & screws. Compression fractures of thoracic spine & later underwent lumbar laminectomy with fusion & insertion of metal screws & struts.
Jury Award. $2 million for past pain & suffering. $2.7 million for future pain & suffering over 20 years.
Appellate Court affirmed jury award.
First Dept. 2010. Vukovich v. 1345 Fee LLC, 72 AD3d 496;
Trial Court. Supreme Court, NY County.
49 year old. Fell from a ladder when he received electrical shock by coming into contact with uncapped electrical wires from open junction box.
Suffered head, neck & back injuries. Accident aggravated preexisting degenerative conditions. 2 surgeries performed within a week of each other.
Jury Award. Future pain & suffering. $1,661,000.
Appellate Court affirmed trial court reduction of $1 million for future pain & suffering.
First Dept. 2005. Vargas v. ML 1188 Grand Concourse, LP, 24 AD3d 104;
Trial Court. Supreme Court, Bronx County.
54 year old. Radiculopathy at L5-S1 with nerve root compression; herniated disc at L2-L3. Lumbar surgery 4 years after accident.
Jury Award. $160,000 for past pain & suffering. $500,000 for future pain & suffering over 20 years.
Appellate Court affirmed award for past pain & suffering and reduced award for future pain & suffering to $300,000.
First Dept. 2004. Sanango v. 200 E. 16th St. Hous. Corp., 15 AD3d 36;
Spinal fusion surgery.
Jury Award. $1 million for past pain & suffering. $1,452,000 for future pain & suffering.
Appellate Court affirmed jury award.
First Dept. 2004. Lewis v. Port Auth. of NY & NJ, 8 AD3d 205;
Trial Court. Supreme Court, NY County.
MV accident.
Fusion surgery to repair sacroiliac joint.
Jury Award. $1.5 million for past pain & suffering. $3 million for future pain & suffering.
Appellate Court reduced award for past pain & suffering to $500,000. Reduced future pain & suffering to $1 million.
Trial Court. Supreme Court, NY County. 2005. Cioffi v. American Airlines, 2005 Slip Op 30191(U);
Disc tear at L5-S1; lower back surgery; shoulder surgery.
Jury Award. $1,157,000 for past pain & suffering. $2.6 million for future pain & suffering over 33 years.
Trial Court. Affirmed jury awards.
Second Dept.
Second Dept. 2021. Pimenta v. 1504 Cia, LLC, 197 AD3d 670;
Trial Court. Supreme Court, Kings County.
42 year old construction worker.
Aluminum ladder fell over & struck plaintiff in the back.
Injuries. Surgeries to cervical & lumbar regions of the spine, including placement of hardware; spinal injections; implantation of spinal cord stimulator; cortisone injections to his knee & arthroscopic knee surgery.
Jury Verdict. Past pain & suffering. $2 million. Future pain & suffering. $15 million.
Trial Judge Reduction of Damages. $1 million for past pain & suffering. $2,250,000 for future pain & suffering,
Appellate Court affirmed trial court.
Second Dept. 2018. Garcia v. CPS 1 Realty, LP, 164 AD3d 656;
Trial Court. Supreme Court, Suffolk County.
46 years old. Removing asbestos caulking from building windows when he fell two feet.
Several herniated discs starting at L5-S1. Spinal fusion surgery; inguinal hernia surgically repaired; drop foot & RSD (Reflex Sympathetic Dystrophy Syndrome).
Trial Court reduced pain past and suffering jury award from $1.2 million to $750,000. Reduced future pain & suffering jury award from $3 million to $1,250,000.
Appellate Court affirmed trial court.
Second Dept. 2017. Cano v. Mid-Valley Oil Co., Inc., 151 AD3d 685;
Trial Court. Supreme Court. Suffolk County.
33 year old construction worker.
Plaintiff fell from unsecured ladder.
2 separate spinal fusion surgeries, a laminectomy & foraminotomy; surgery to repair comminuted fracture in dominant wrist. Lost almost all range of motion in his left pinky finger & limited range of motion in his wrist.
Jury Award. $100,000 for past pain & suffering. $375,000 for future pain & suffering.
Appellate Court increased award for past pain & suffering to $1 million. Increased future pain & suffering to $2.5 million.
Second Dept. 2016. McEachin v. City of NY, 137 AD3d 753;
Trial Court. Supreme Court, Kings County.
49 year old. MV accident.
Lower back radiculopathy. Epidural steroid injections. Spinal cord stimulator implanted to block pain reception.
Jury Award. $600,000 for past pain & suffering. $500,000 for future pain & suffering for 20 years.
Appellate Court reduced award for past pain & suffering to $400,000. Reduced future pain & suffering to $350,000.
Second Dept. 2015. Robles v. Polytemp, Inc., 127 AD3d 1052;
Trial Court. Supreme Court, Westchester County.
Motor vehicle accident.
Herniations requiring 2 spinal fusion surgeries.
Jury Award. $400,000 for past pain & suffering. $400,000 for future pain & suffering.
Appellate Court affirmed jury award.
Second Dept. 2014. Lopez v. NYC Dept. of Env. Protection, 123 AD3d 982;
Trial Court. Supreme Court, Kings County.
Construction accident.
Plaintiff fell backward & impaled on uncapped piece of vertical rebar. Spinal fusion surgery. Multiple hospitalizations & several surgical procedures.
Jury Award. $2 million for past pain & suffering. $3 million future pain & suffering.
Appellate Court affirmed jury award.
Second Dept. 2014. Halsey v. NYC Tran. Auth., 114 AD3d 726;
Trial Court. Supreme Court, Quens County.
Bus in which plaintiff was riding struck utility pole.
Plaintiff, 27 years old. Protruding disc in lumber spine, radiculopathy, torn rotator cuff with impingement of right shoulder & torn triceps tendon in right elbow. Plaintiff underwent a laminectomy & fusion on lumbar spine where a piece of the disc was removed & bone graft was fused to replace removed disc. Surgeries to right shoulder & elbow.
Jury Award. $3 million for future pain & suffering.
Appellate Court affirmed jury award.
Second Dept. 2013. Kayes v. Liberati, 104 AD3d 739;
Trial Court. Supreme Court, Queens County.
Motor vehicle backed into stop sign causing it to fall, striking plaintiff.
Herniated discs requiring surgery.
Jury Award. $500,000 for past pain & suffering. $1.5 million for future pain & suffering.
Appellate Court affirmed jury award.
Second Dept. 2012. Guallpa v. Key Fat Corp., 98 AD3d 650;
Trial Court. Supreme Court, Queens County.
28 year old. Fell 10 feet off ladder at construction site.
Herniated disc at L4-5 requiring surgery; ankle fracture requiring 2 surgeries; rotator cuff injury.
Jury Award. $791,000 for past pain & suffering; $1,428,571 for future pain & suffering over 28 years.
Appellate Court affirmed jury award.
Second Dept. 2010. Conlon v. Foley, 73 AD3d 836;
Trial Court. Supreme Court, Kings County.
MV accident.
2 herniated discs requiring laminectomy & fusion surgery.
Jury Award. $5 million for past pain & suffering.
Appellate Court reduced award to $700,000.
Second Dept. 2010. Baird v. VIP Mgt. Co., Inc., 60 AD3d 608;
Trial Court. Supreme Court, Westchester County.
Plaintiff had 3 surgeries to repair discs between 5th & 6th vertebrae & between the 6th & 7th vertebrae. Such surgeries involved placing bone grafts between vertebrae. Graft between 6th & 7th vertebrae only partially fused.
Jury Award. $100,000 for past pain & suffering. $300,000 for future pain & suffering.
Appellate Court increased award of past pain & suffering to $400,000.
Third Dept.
Third Dept. 2013. Leszcynski v. Town of Neversink, 107 AD3d 1183;
Trial County. Supreme Court, Sullivan County.
Plaintiff struck on head by a stone weighing between 40-80 pounds while standing in a trench where installing sewer pipe.
Herniated disc at L5-S1. Surgery for herniated disc. While some limits on physical abilities, able to return to work to drive & operate heavy equipment.
Jury Award. $25,000 for past pain & suffering; $150,000 for future pain & suffering.
Appellate Court affirmed jury award.
Fourth Dept.
Fourth Dept. 2019. Mast v. Desimone, 177 AD3d 1348;
Trial Court. Supreme Court, Erie County.
30 year old. Disc herniation at L5-S1 resulting in discectomy & lumbar fusion surgery.
Jury Award. $120,000 for past pain & suffering. $0 damages for future pain & suffering.
Appellate Court affirmed award for past pain & suffering. Disagreed as to jury award of no damages for future pain & suffering & ordered a new trial.
Fourth Dept. 2009. Kmiotek v. Chaba, 60 AD3d 1295;
Trial Court. Supreme Court, Erie County.
Motor vehicle accident.
Annular tear & herniated discs at L4-L5 & L5-S1 requiring surgery.
Jury Award. $35,000 for past pain & suffering. $40,000 for future pain & suffering over 40 years.
Appellate Court increased award for past pain & suffering to $75,000. Increased award for future pain & suffering to $150,000.
September 8. §200 Dismissed as Floor Brace in Kitchen Under Construction Readily Was Observable to Plaintiff.
Sullivan v. Flynn, 2024 NY Slip Op 51551(U), Supreme Court, Warren County, Hon. Robert Muller, arose from a trip & fall in a kitchen under construction. Plaintiff, who came to the kitchen construction site because he was hired to install cabinets and was taking measurements, tripped on a wooden brace. Plaintiff testified he was aware of the brace prior to the accident. Where the wooden brace was a readily observable risk to a worker in the plaintiff’s position, there was obligation to warn of the wooden brace. Also, there is no obligation to warn against defects or dangers that a part of, or inherent to, work being performed.
With a §200 cause of action involving an alleged dangerous condition, a defense is there is no foreseeability of such condition where it is readily observed by plaintiff or it is an inherent part of the work being performed. Note that in addition to a dangerous condition on the work site, §200 liability is also imposed where the owner , GC or subcontractor supervised & controlled the means & methods of the injury producing work.
September 7. Comment. Workers Compensation Law §118 That Finding of Workers’ Compensation Board or Judge Cannot be Used in Worker’s Civil Action. Is §118 Retroactive?
Workers’ Compensation Law §118 was enacted in December 2022 and states,
In an action for a workers’ compensation claim permissible under this chapter, no finding or decision by the workers’ compensation board, judge or other arbiter shall be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence.
Prior to enactment of §118, the rule was where an issue was decided by the Workers’ Compensation Board, such issue was entitled to collateral estoppel effect in plaintiff’s civil action for injuries.
Quasi-judicial determinations of administrative agencies, such as Workers’ Compensation Board, are entitled to collateral estoppel effect where an issue a party seeks to preclude in subsequent civil action is identical to a material issue that was necessarily decided by Board & where full & fair opportunity to litigate before the Board. Szymkowiak v. NY Power Auth., 203 AD3d 1618;
As §118 became effective December 30, 2022, the issue is whether §118 is retroactive to actions commenced prior to its enactment. In an August 30, 2024 decision of the Hon. Gerald Lebovits of the Supreme Court, NY County, Wojtaszek v. City of NY, 2024 NY Slip Op 24231, it was held §118 is retroactive, thus denying defendant’s motion to amend its answer to add an affirmative defense precluding an alleged injury. In 2019, Workers’ Compensation Board ALJ held, and the Board’s Administrative Review Division affirmed, that plaintiff should not be permitted to amend his workers’ compensation claim to seek benefits for injuries to his right hand as plaintiff had not shown by a preponderance of the evidence that such right hand injury was causally related to the workplace accident.
The motion noted there is no appellate court holding on the issue of whether §118 is retroactive. Defendants in the case argued that because §118 became effective 3 years after the Workers’ Compensation Board decisions at issue, applying §118 to those decisions would be retroactive. The motion court said no, stating a statute has retroactive effect of it would impair substantive rights. §118 does not affect the parties’ rights and obligations under Labor Law 200, 240(1) or 241(6), nor the remedies that plaintiff may obtain in an action against defendant brought under those statutes. It does not affect substantive rights. As such, defendants not allowed to raise the holding of the Workers’ Compensation Board.
In a 2023 decision out of the Supreme Court, Kings County, Pacheco v. PVE Co., LLC, 2023 NY Slip Op 23279, Hon. Karen Rothenberg, the issue was whether an August 23, 2022 decision from a Workers’ Compensation Board Judge determining that treatment for plaintiff’s neck injury had not been established, disallowing the neck injury claim, was subject to §118, i.e., whether §118 was retroactive to the decision. The decision cited the legislative history of §118 that administrative hearings before a workers’ compensation judge “sacrifice basic procedures and evidentiary rules of trials to swiftly decide the claims and that §118 is needed to ensure that findings from cursory Workers Compensation Board hearings do not prevent workers from exercising their constitutional right to a jury trial.” Judge Rothenberg noted “retroactive application will not result in unfairness or impair substantive rights.” As such, it was held §118 applied retroactively.
As it is now nearing 2 years since §118 was enacted, the issue of the statute’s retroactivity to pre-statute decisions of the Workers’ Compensation Board is becoming increasingly moot. Decisions cited above provide how it is determined whether an enacted statute applies retroactively.
September 6. 240(1) Action Dismissed Where Worker Injured Trying to Catch Dropped Rebar. Usual & Ordinary Peril of Construction Site.
Supreme Court, NY County. Alonzo v. RP1185 LLC, 2024 NY Slip Op 33072(U). Lend Lease Construction was the construction manager for the project. Plaintiff was installing thick rebar into an unfinished wall that would eventually be filled with cement, while employed by Dutchess Rebar Fabricators. Plaintiff was attached to the unfinished wall with a safety harness that had 2 lanyards with one connected to the floor above and the other connected to the wall. Plaintiff’s feet rested on a thin piece of rebar while coworkers stood on a small platform.
Plaintiff’s supervisor, positioned on the floor above, passed the thick rebar by hand down to the workers piece by piece for installation into the wall. The thin piece of rebar plaintiff was standing on shifted, causing plaintiff to drop the thick rebar. Plaintiff’s end of the rebar fell one foot. Plaintiff injured his shoulder trying to prevent the rebar from falling further. Hon. David Cohen, in dismissing the 240(1) action, wrote,
As plaintiff injured his shoulder as he attempted to grab the piece of thick rebar he had just dropped, his injuries were not the result of a fall he suffered or being struck by a falling object. His injuries were caused by the type of ordinary and usual peril to which a worker is commonly exposed to at a construction site.
General Workplace Hazards. 240(1) Dismissed.
Protruding pipes from a wall causing a fall.
Falling window glass at warehouse.
Falling gang box.
Falling pebbles entering plaintiff’s eye while working in building’s shaft.
Muddy ground while raining.
Repeated work of lowering buckets.
Manually lifting an object.
Dust & paint chips on scaffold platform.
Worker lost his balance while working on a ladder.
Trip and fall on temporary staircase.
Accident resulting from being struck by object loosened by vibration is merely a hazard incidental to the workplace.
Worker’s shirt caught in cement mixer.
Falling window a general hazard of work site.
Fall from defective fire escape.
Heavy stone falling off pallet.
Cart containing sheetrock toppled over.
Plaintiff struck by backhoe bucket while working in a trench.
Plaintiff pinned between 2 trusses at ground level.
A bottle slipped & fell from plaintiff’s hand.
Spreader bar not being hoisted.
Climbing through a hole in a wall.
Stepping into drainage ditch upon exiting aerial bucket.
Foot slipping into gap between boards.
Court of Appeals
Court of Appeals. 2008. 240(1) Dismissed. Metal rods not reason why ladder was required. Plaintiff employed as electrical subcontractor on renovation project at Memorial Sloan Kettering Cancer Center. Plaintiff was assigned installing metal racks in a ceiling. 6-foot A-frame ladder was provided to plaintiff. However, such ladder was inadequate for the work needed to be performed. When the ladder was placed in the only possible location, its first rung was completely blocked & inaccessible. A metal rod protruded from a piece of cast iron in a wall as a plumber’s roughing for a toilet to be installed. As such, plaintiff was forced to step directly from the second rung to the ground when descending the ladder. A second cast iron rod protruded a few inches behind ladder’s second rung. Plaintiff’s foot became caught between the second rung, causing a fall. Held that no 240(1) liability where accident results from separate hazard wholly unrelated to the risk which brought about the need for the safety device in first place. Here, presence of 2 unconnected pipes protruding from a wall was not the risk which brought about the need for a ladder but was one of the usual & ordinary dangers at construction site. Cohen v. Memorial Sloan-Kettering Cancer Ctr., 11 NY3d 823;
Court of Appeals. 2001. Falling Window Glass at Warehouse. While risk of falling glass is greater at a warehouse whose windows have been damaged in a fire, that is not the type of risk 240(1) was intended to address. Absolute liability for falling objects under Labor Law 240(1) arises only with a failure to use necessary and adequate hoisting or securing devices. Absence of a necessary hoisting or securing device of the kind enumerated in 240(1) did not cause the falling glass here. This was clearly a general hazard of the workplace, not one contemplated to be subject to 240(1). Narducci v. Manhasset Bay Associates, 750 NE2d 1085.
First Dept.
First Dept. 2022. Falling Gang Box. 240(1) dismissed. The gang box that fell on plaintiff was not a material requiring hoisting or securing. The struts of the gang box, which were missing, did not constitute a safety device contemplated by 240(1) as they were not meant to lessen a gravity related risk related to securing of a large load or hoisting of construction materials. Gang box constituted a routine workplace risk. Cotroneo v. Van Wagner Sign Erectors, LLC, 210 AD3d 421;
First Dept. 2022. Lifting Gang Box Lid. Plaintiff was standing at the same level as the gang box when the lid fell. The lifting of the posed the usual and ordinary dangers of a construction site. Ormsbee v. Time Warner Realty Inc., 203 ASD3d 630;
First Dept. 2022. Falling Pebbles Entering Plaintiff’s Eye While Working in Building’s Shaft. Carpenter plaintiff was building a platform in a shaft on the tenth floor of a building to frame or “box out” some pipe in the shaft. While plaintiff looked up at one point, small bits of concrete, the size of pebbles struck his eye. Held issue of fact as to 240(1) liability. The elevation difference between plaintiff and the level it fell may be de minimis; that debris weight was inconsequential; that such pebbles could not have generated any meaningful amount of force; or accident was result of usual and ordinary dangers at construction site. Peters v. Structure Tone, 204 AD3d 522;
First Dept. 2019. Muddy Ground While Raining Not Usual & Ordinary Dangers of Construction Site. Plaintiff slipped on a patch of mud after exiting the building under construction. Demetrio v. Clune Construction Co., 176 AD3d 621;
First Dept. 2017. Plaintiff claimed injury from repeated work, over the course of weeks, of being handed heavy buckets from workers at a higher level & then transporting the buckets by hand on his own level. Plaintiff’s assertion that he was required to catch buckets in mid-air after being dropped by coworkers standing on a barge 6 feet above where he was standing, was unsupported by the evidence. As plaintiff exposed to usual and ordinary dangers of a construction site & not elevation risk, 240(1) claim dismissed. Ciechorski v. City of NY, 154 AD3d 413;
First Dept. 2017. Dust & Paint Chips on Scaffold Platform. Accumulation of paint chips & dust on scaffold platform on which plaintiff was working was usual and ordinary dangers at a construction site to which protections of 240(1) not apply. Serrano v. Consolidated Edison Co. of NY, Inc., 146 AD3d 405;
First Dept. 2016. Issue of Fact. Fall From Motorized Wheelbarow Causing Fall Down a Hill. Plaintiff a foreman at a job site where plumbing work was being performed. While plaintiff was standing on Benford motorized wheelbarrow, which was stopped near the top of a hill, to speak to a worker, the Benford began to slide down the hill and the operator could not stop its descent. Plaintiff either jumped or was thrown from the Benford & tumbled down the hill. Issue of fact whether fall was gravity-related risk or result of usual and ordinary dangers of a work site. Ankers v. Horizon Group, LLC, 141 AD3d 418;
First Dept. 2016. While Descending Ladder, Plaintiff Lost His Balance. Usual & Ordinary Danger at Construction Site. Plaintiff, a sheet metal apprentice performing duct work, while descending a ladder, his pants leg got caught on unmarked rebar protruding from the concrete floor, causing him to step down from the third rung of the ladder, lose his balance and fall to ground. There was no dispute the ladder was free of defects. 240(1) dismissed as the fall not result of elevation-related risk. Accident was result of usual and ordinary dangers at a construction site. Almodovar v. Port Auth. of NY & NJ, 138 AD3d 571;
First Dept. 2012. Worker’s Shirt Caught in Cement Mixer. Plaintiff, driver of cement mixing truck was directed by contractors and construction manager to position his truck side by side with another cement truck so the 2 trucks could simultaneously pour their cement into a hopper. Plaintiff mounted the truck’s rear fender, which was 3 feet of the ground and knelt down to activate a water mixing valve. At this time the back of his shirt became caught in mixer’s rotating hatch handle, caused plaintiff to be propelled upward and over to the other side of the truck. Plaintiff not exposed to elevation related risk and accident not directly flow from application of gravity’s force. Rather, accident arose from activities and circumstances arising on construction site & not covered by 240(1). DeRosa v. Bovis Lend Lease LMB, Inc., 96 AD3d 652;
First Dept. 2012. Plaintiff testified he lost his footing on scaffold platform, causing a pipe he had been handed to slip downward in his hands. As plaintiff reached forward to grab the pipe, there was sharp pain in his back. Plaintiff not know why he lost his footing as scaffold not shake or move & there was no debris on the platform. Evidence demonstrated accident not caused by failure to provide adequate protection against elevation related risk but by routine workplace risk. Winters v. Main LLC, 96 AD3d 428;
First Dept. 2011. Fall on Temporary Staircase. Working as bricklayer foreman at work site of a hotel, plaintiff tripped and fell as he was ascending a temporary staircase from the first floor to the second floor of the hotel. Temporary staircase between first & second floors was constructed such that the top tread was wedged under the concrete slab that formed second floor. Plaintiff tripped on edge of the slab, causing him to fall forward onto the floor. Accident not result of elevation related or gravity related risk. The accident resulted from a hazard wholly unrelated to the risk which brought about the need for the stairs in the first instance & was the result of usual and ordinary dangers at construction site. That plaintiff fell while at elevated level not render the accident a result of elevation related risk as accident occurred on same level of plaintiff’s work area. Reyes v. Magnetic Constr., Inc., 83 AD3d 512;
First Dept. 2010. Accident resulting from being struck by object loosened by vibration is merely a hazard incidental to the workplace. Plaintiff injured at demolition site when a portion of exterior wall collapsed onto him as he was clearing debris on a staircase landing between the 7th and 8th stories. Accident occurred when a coworker, located 30 feet from plaintiff, was using a long torch to cut floor beams of the floor above him. Plaintiff heard someone yell the wall is collapsing. A portion of falling wall struck plaintiff, knocking him down the stairs. As plaintiff was not working at an elevation, no protective devices of the type enumerated in 240(1) were required. Kaminski v. 53rd St. & Madison Tower Dev., LLC, 70 AD3d 530;
First Dept. 2006. 240(1) dismissed as falling window that caused the injury, while clearly a general hazard of the workplace, was not a material being hoisted or a load that required securing for the purposes of the undertaking. Paulino v. Hearts Serv. Co., Inc., 28 AD3d 362;
First Dept. 2004. Defective Fire Escape. Plaintiff halted his masonry pointing and sealing he was performing from a scaffold. He then dismounted the scaffold onto an adjacent fire escape platform & tried to descend from there to street level. As plaintiff stood on fire escape attempting to lower the fire escape ladder, its securing mechanism broke, releasing a metal bolt & ladder which struck plaintiff. No work was being done from the fire escape. The safety harness & scaffold functioned properly & did not contribute to the accident. It was the only time plaintiff used the fire escape. Court held accident not within 240(1) but instead, a general hazard of workplace. Sahota v. Celaj, 11 AD3d 308;
Second Dept.
Second Dept. 2014. Heavy Stone Falling Off Pallet. Defendants Failed to Show General Hazard at Construction Site. Plaintiff injured when heavy stone block toppled off a pallet and struck his foot. Plaintiff said the ground underneath the pallet was uneven and covered with ice. Blocks were stacked vertically on the pallet without any means of securing. Right before accident occurred, a frontloader being used to remove nearby snow, caused a strong vibration jarring the blocks on the pallet. Defendants failed to show the accident resulted from a general hazard encountered at a construction site and were not the direct consequence of a failure to provide an adequate device of the sort enumerated in 240(1). Desena v. North Shore Hebrew Academy, 119 AD3d 631;
Second Dept. 2012. Plaintiff, a painter was injured when a cart holding sheetrock, toppled over causing the cart and sheetrock to strike his right leg. Evidence demonstrated accident resulted from general hazard encountered at construction site and were not direct consequence of failure to provide adequate safety device of sort enumerated in 240(1). Such devices are intended to protect against a risk arising from physically significant elevation differential. Grygo v. 1116 Kings Highway Realty, LLC, 96 AD3d 1002;
Second Dept. 2005. Steel I-Beam Weighing 300-400 Pounds Dropped While Being Carried. 240(1) Dismissed. Plaintiff and 4 coworkers, working on ground floor, moving a steel I-beam, weighing 300-400 pounds. The intent was to carry the beam a distance of 5 feet and place it atop a scaffold, which was 8 feet off the ground. As plaintiff held beam above his head, coworker tripped, causing beam to fall and injure plaintiff. 240(1) dismissed as worker not subject to elevation-related hazard. Rather, plaintiff exposed to usual and ordinary dangers of a construction site and not extraordinary elevation risks envisioned by 240(1). Parker v. Ariel Assoc. Corp., 19 AD3d 670;
Second Dept. 2004. 240(1) Dismissed. Plaintiff struck by a 37 pound bucket of joint compound fell on his head from atop 16 foot scaffold that he was moving in preparation for breaking down the scaffold. Plaintiff failed to check top of scaffold before moving it. It was claimed the scaffold had no protective rails. Evidence established bucket of joint compound not being hoisted or secured when plaintiff caused it to topple from its perch. Accident that resulted was type of hazard construction worker usually encounters on the job. Also, plaintiff’s actions sole proximate cause of accident. Gambino v. Massachusetts Mut. Life Ins. Co., 8 AD3d 337;
Third Dept.
Third Dept. 2013. Backhoe Bucket Not “Falling Object.” Usual & ordinary dangers of construction site. Plaintiff struck by backhoe bucket while working in a trench. Coworker Manning lowered was installing a T-connection to existing water main allowing new fire hydrant to be connected. After lowering the T-connection into the 9 foot trench, Manning exited the backhoe to check on the placement of the T-connection. Manning then returned to the backhoe, the bucket of which remained suspended 3.5 feet above plaintiff. However, bucket then descended into the trench crushing plaintiff. Plaintiff’s expert concluded the accident occurred by Manning accidentally bumping the backhoe’s joystick, causing the bucket to lower and hit plaintiff. As the backhoe struck plaintiff not because of gravity but because of mechanical operation by a coworker, 240(1) claim dismissed. Here, no falling object, as harm not flow from application of force of gravity to an object, but from usual and ordinary dangers of construction site. Mohamed v. City of Watervliet, 106 AD3d 1244;
Third Dept. 2012. Pinned between 2 trusses at ground level. Plaintiff was responsible for reading numbered tags on pieces of structural steel & after comparing them to a blueprint, directing the sequence for the placement of steel components into the building structure. Immediately before the accident, plaintiff was walking between 2 steel trusses, which were girders measuring 30 feet long by 5.5 feet high by 1 foot wide, viewing their numbered tags. A forklift drove over a soft spot in the ground causing its right tire to sink 6-8 inches. As a result, an unsecured bar joist the forklift was carrying shifted sideways, striking one of the trusses, which fell over, pinning plaintiff between 2 trusses. Here, the falling object was a 10,000 pound truss that had been set upright but remained on the ground in preparation for placement into the building structure. It was alleged the truss tipped over & fell after it was struck by the bar joist being carried by a forklift. Such truss that knocked plaintiff down generated sufficient force to cause severe injuries, crushing plaintiff’s legs. It was undisputed the accident occurred by the operation of gravity on the trusses. The truss and plaintiff were both at ground level and were the same height. The truss was struck by an object moving horizontally. Notwithstanding the substantial weight of the truss and significant force it generated as it fell, there was no elevation differential. Under these circumstances, plaintiff was exposed to the usual and ordinary dangers of a construction site and not the extraordinary elevation risks envisioned by 240(1). Oakes v. Wal-Mart Real Estate Bus. Trust, 99 AD3d 31;
Third Dept. 2010. Bottle Slipped & Fell From Plaintiff’s Hand. Plaintiff sustained eye injury while cleaning grease from exhaust system in restaurant kitchen. Plaintiff was standing on the ground while coworker was lying on exhaust hood 4 feet above him. As coworker handed plaintiff a pressurized bottle containing a chemical used for cleaning, bottle slipped from plaintiff’s hand and upon impact with the floor, sprayed the chemical into plaintiff’s eye. As plaintiff had taken control of the bottle from coworker and thus the bottle was not being lowered when it fell to the floor, there was no elevation differential between the falling object and plaintiff. There was no evidence the bottle fell because of absence of a safety device. Plaintiff was simply exposed to the usual and ordinary dangers of a workplace and not risks envisioned by 240(1). Sereno v. Hong Kong Chinese Rest., 79 AD3d 1414;
Third Dept. 2006. Spreader Bar Not Being Hoisted or Secured & on Same Level as Plaintiff. Plaintiff was struck a lifting mechanism called a spreader bar, that was attached to a truck, swing loose & struck plaintiff. Spreader bar not fall but shifted & swung around, hitting plaintiff. Such spreader bar was not construction material being hoisted or secured at the time. Rather, it was a safety device being maneuvered in preparation for hoisting a piece of a septic tank. Plaintiff was exposed to ordinary dangers of a construction site, rather than elevation risks envisioned by 240(1). Desharnais v. Jefferson Concrete Co., Inc., 35 A D3d 1059:
Third Dept. 2001. While standing on a scaffold 5 feet above the ground, a coworker on the ground handed up a bucket of plaster. When plaintiff squatted down & grabbed the bucket and the co-worker let go of the bucket, the weight of the bucket jerked plaintiff’s hands & upper body downward. Plaintiff claimed he suffered back injuries. Plaintiff asserted the bucket constituted a “falling object.” It was held the hazard causing the injury, i.e., a coworker handing plaintiff a heavy object was only tangentially related with effects of gravity. That plaintiff was working at elevated level when bucket fell was irrelevant to a “falling object” analysis as the risk plaintiff’s arm would be pulled down by weight of the bucket existed regardless of whether plaintiff was standing on a scaffold or elevated site. Bucket was not a falling object. Rather, accident resulted from type of ordinary and usual peril a worker is commonly exposed to at a construction site. Schwab v. Martini Inc., 288 AD2d 654;
Fourth Dept.
Fourth Dept. 2022. Issue of Fact. Plaintiff Working in Trench Struck in Leg by Bucket of Excavator Situated on Edge of Trench. Issue of fact whether accident due to a risk contemplated by the statute or by usual and ordinary dangers of a construction site. Malvestuto v. Town of Lancaster, 201 AD3d 1339;
Fourth Dept. 2021. Manually lifting an object. Plaintiff brought 240(1) action for accident that occurred while replacing a roof at Rochester Airport Marriott hotel. Plaintiff injured his back lifting large metal structure 6-8 inches off the surface of the roof so coworker could apply new roofing material underneath. Protections of 240(1) not encompass any & all perils that may be connected in some tangential way with effects of gravity. Rather, accident resulted from a routine workplace risk of a construction site & not elevation risk. Branch v. 1908 W. Ridge Road, LLC, 199 AD3d 1362;
Fourth Dept. 2015. Lifting a Door While Engaged in Renovation Work. Plaintiff, a carpenter, hired to perform exterior renovation work single-family residence & accident occurred while installing a door. As plaintiff & coworker lifted the door & were maneuvering the door across a gap, plaintiff felt a twinge or “pop” in his lower back. Although back injury was tangentially related to the effects of gravity upon the door he was lifting, it was not caused by the limited type of elevation-related hazards encompassed by 240(1). The hazard at issue here, i.e., carrying a heavy object across a lateral gap, even while positioned at a height, is a routine workplace risk of a construction site & not a pronounced risk arising from construction work at site elevation differentials. Carr v. McHugh Painting Co., Inc., 126 AD3d 1440;
Fourth Dept. 2014. Struck by falling cart. Plaintiff and coworker in dormitory room, unloading sheet of drywall from a wheeled cart. Remaining drywall on the cart moved and struck them & cart toppled over striking plaintiff. At time of accident, plaintiff standing on the ground, drywall was not being hoisted or secured & cart not being hoisted or otherwise moved vertically. Accident not result of failing to provide blocks or stays to protect against elevation differential as here, such devices would not have been to protect plaintiff from effects of gravity. Accident resulted from general hazard at construction site. Miles v. Buffalo State Alumni Assn., Inc., 121 AD3d 1573;
Fourth Dept. 2011. Fall From Climbing Through Hole in Wall. Plaintiff fell when he climbed through an opening that had been cut through a wall to gain access to a room where he was working. Plaintiff’s pant’s leg snagged on rebar, mesh or jagged concrete protruding from the ledge of the opening, causing a fall to the floor below. Such accident resulted from usual and ordinary dangers of a construction site and not the extraordinary risks envisioned by 240(1). Baker v. City of Buffalo, 90 AD3d 1684;
Fourth Dept. 2007. Stepping into drainage ditch upon exiting aerial bucket. Plaintiff assigned task of detaching a telephone wire from one utility pole & raising the telephone wire onto 2 newly built poles. After repositioning the telephone wire, plaintiff lowered aerial bucket in which he was performing such work until it was 6-12 inches above the ground. Stepping out of aerial bucket, plaintiff fell into drainage ditch. Here, aerial bucket used by plaintiff was effective in preventing plaintiff from falling while attaching telephone wire to new poles. However, plaintiff’s fall to drainage ditch not within protection of 240(1) as it resulted from usual and ordinary dangers at a work site & no elevation related risk was present. Kaleta v. NYS Elec. & Gas Corp., 41 AD3d 1257;
Fourth Dept. 2005. 240(1) Dismissed. Roofer was covering an 8-foot high stack of insulation boards with a tarp. As plaintiff was walking backwards on top of the stack of boards & pulling the tarp, his right foot slipped into a gap between the boards. He fell into a gap up to his knee. Such accident was one of usual and ordinary dangers of construction site and was not within protection of 240(1). Keavey v. NYS Dormitory Auth., 24 AD3d 1193;
September 6. Issue of Fact as to 240(1) Liability. Whether Foreseeable That Concrete Piece Would Detach From Adjacent Building’s Foundation.
Supreme Court, NY County. Moises-Ortiz v. FDB Acquisition LLC, 2024 NY Slip Op 51211(U). FDB hired defendant Pav-Lak Contracting to serve as construction manager to demolish a one-story building and to build a two-story building. PAV-Lak hired third party defendant RNC Industries to perform the foundation and underpinning work.
Wikipedia defines “underpinning” as a process of strengthening the foundation of an existing building or other structure. Underpinning may be necessary where,
Original foundation is not strong enough or stable.
Usage of the building or structure has changed.
The properties of the soil supporting the foundation may have changed or were mischaracterized during design.
The construction of nearby structures necessitates the excavation of soil supporting existing foundations.
To increase the depth or loads capacity of existing foundations to support the addition of another story to the building.
It is more economical, due to land price or otherwise, to work on the present structure’s foundation than to build a new one.
Earthquake, flood, drought or other natural causes resulting in movement of the structure or building, requiring stabilizing of foundation soils.
Underpinning is accomplished by extending the foundation in depth or breadth so it either rests on a more supportive soil stratum or distributes its load across a greater area.
As plaintiff in Moises-Ortiz case was performing underpinning work on a building, he was struck by a piece of concrete that detached from the foundation of adjacent building. The rule is that where there was a collapse of a permanent structure, plaintiff must establish the collapse was foreseeable, not in a strict negligence sense, but in the sense of foreseeability of plaintiff’s exposure to an elevation-related risk. A permanent structure is generally not an object that requires securing for the purposes of the undertaking. But collapse of a permanent structure can form basis of 240(1) claim if it was a foreseeable risk of the task plaintiff was performing.
Plaintiff’s engineer, Dr. Mehdi Omidvar opined the visibly poor concrete conditions of the foundations involved in the underpinning work would have jeopardized the stability of the concrete foundation and the field conditions demonstrated presence of poor concrete consolidation, numerous voids in the concrete suggesting aggregate segregation, among other defects. Inspection of the “cold joints” revealed likely lack of reinforcement and general degradation of the concrete foundation. However, as there were no previous incidents of concrete detaching during underpinning work, issue of fact whether foreseeable a piece of concrete might break off from the foundation and fall on worker performing underpinning below.
Aggregate Segregation occurs when
- Larger aggregates separate from smaller particles in the concrete mixture, resulting in a honeycomb pattern or visible ricks/gravel on the surface.
- Coarse aggregates separate from the cement paste during mixing and placing impacting concrete strength and durability.
- Heavier aggregates settle down due to gravity, leaving lighter cement and water mixture on top.
- Over vibration or compaction can cause cement paste to rise to the top and aggregates to settle at the bottom. (Angie’s List)
Aggregate is a broad category of coarse to medium grained particulate products used in construction, including sand, gravel, crushed stone, slag, recycled concrete and geosynthetic aggregates.
August 28. Plaintiff’s Deposition Testimony & Reports Of Accident Not Inconsistent. One Statement Provided More Detail Than The Other Statement.
In an August 23, 2024 decision of the Supreme Court, NY County, Callan v. RCB3 Nominee LLC, 2024 NY Slip Op 32968(U), defendants asserted there was an issue of fact as to whether 240(1) was violated based upon statements in written reports and deposition testimony as to the cause of his fall from a ladder. Plaintiff was an electrician working at a site in NY County. Plaintiff testified that when descending a ladder, he felt the ladder “shift a little,” causing him to lose his balance and miss a step on the ladder. Plaintiff testified if the ladder had not shifted, he would not have missed the step on the ladder. In an Accident Report he filled out after the accident, plaintiff did not write the ladder shifted. Rather, the report stated he missed the last step of the ladder. However, a C3 Report, signed by plaintiff a week after the accident, stated the ladder moved, causing the fall. Hon. David Cohen, held, “plaintiff’s testimony that he felt the ladder shift a little as he was coming down … and then he missed a step, is consistent with his prior Statement, wherein he wrote that he “missed the last step.” Judge Cohen held the statements not inconsistent as one statement provided a more detailed description of the accident than the first statement.
The decision cited Ping Lin v. 100 Wall St. Prop. LLC, 193 AD3d 650 (1st Dept. 2021), holding, plaintiff’s statement to his supervisor that he fell because he lost his balance is consistent with his more detailed testimony regarding how he lost his balance and fell from the ladder after it moved.
In assessing whether statements are inconsistent, determine whether one of statements provides more detail than the first statement rather than being a contradictory statement.
August 26. Defenses to 240(1) Cause of Action For a Fall Off a Ladder.
Comment. Labor Law §240(1), a strict liability statute, meaning a plaintiff’s comparative negligence is not considered, encompasses worker falls from elevated heights and falling objects striking workers. NY is the only state where comparative negligence of a worker is not assessed. While comparative negligence is not a defense, 240(1) action is dismissed where a worker’s actions were the sole proximate cause of the accident. If there is found to be a 240(1) violation, a worker’s actions cannot be the sole proximate cause of the accident.
240(1) liability is limited to owners of a worksite; general contractors and an entity that is an agent of the owner of GC. The agent is usually plaintiff’s employer as such employer directed and supervised the injury producing work. If a subcontractor did not supervise and control the injury producing work, the 240(1) action is dismissed against such subcontractor.
For there to be 240(1) liability, the worker falling from a ladder must be engaged in one of the 6 enumerated work activities of 240(1): erection, demolition, repairing, altering, painting, cleaning and pointing, or activity considered “auxiliary” to such activities. As such, if the worker falls from a ladder while performing routine maintenance, 240(1) claim is dismissed.
Slipped while on a ladder, or simply lost his or her balance & no evidence the ladder was in a defective condition, §240(1) Dismissed.
Court of Appeals. 2003. 240(1) Dismissed. Ladder Not Defective & No Malfunction. Plaintiff Lost Balance or Lost His Footing. Plaintiff working alone on renovation job at two-family house in the Bronx. Plaintiff used his own extension ladder, which he used frequently. Plaintiff acknowledged the ladder was steady, had rubber shoes and was in proper working condition. As plaintiff began scrapping rust off a window, upper portion of the ladder retracted, causing injury. At trial, plaintiff conceded he could not identify a defect in the ladder, that it was stable and there was no reason to have it steadied during use. He was unsure whether he had locked ladder’s extension clips in place before ascending ladder. Plaintiff argued he was entitled to recover where no evidence of a violation and evidence that he was entirely responsible for the accident. As there was no statutory violation and that plaintiff alone, by negligently using the ladder with the extension clips, unlocked, was fully responsible for his injury. Blake v. Neighborhood Hous. Serv. Of NYC, 1 NY3d 280;
First Dept. 2019. “There is no viable Labor Law Section 240(1) claim where, as here, plaintiff simply lost his footing while descending a properly secured, non-defective extension ladder that did not malfunction. Michell v. City of NY, 169 AD3d 505;
Second Dept. 2022. Plaintiff Lost His Balance on Ladder. 240(1) Dismissed. Plaintiff testified at his deposition that while descending a 6 foot A frame ladder, when he reached second rung from bottom of the ladder, he lost his balance & fell. Plaintiff not recall whether ladder moved in any way before he fell. Defendants established ladder not defective, that additional safety devices were not required and plaintiff’s actions sole proximate cause of the fall. Singh v. 180 Varick, LLC, 203 AD3d 1194;
Third Dept. 2010. Issue of Fact. As ladder not reach top of wall, plaintiff had to climb up the side of wall using safety devices provided for such purpose. Ladder shifted after a waler he grabbed gave way as he attempted to attach lanyard. However, defendants offered evidence of ladder’s stability & type of safety devices provided to plaintiff, which contradicted plaintiff’s testimony. Where worker was provided with a safety device, whether such device provided proper protection, is usually a question of fact to be resolved at trial. Beardslee v. Cornell Univ., 72 AD3d 1371;
Fourth Dept. 2017. Plaintiff failed to met her burden by simply establishing a fall from a height.Safety ladder used by decedent did not tip and scaffolding not collapse, tip or shift. No witnesses to accident. Hastedt v. Bovis Lend Lease Holdings, Inc., 152 AD3d 1159;
Ladder Was Secured
Second Dept. 2017. 240(1) Dismissed. Ladder & scaffold not tip or shift & plaintiff sole witness to accident. Undisputed the safety ladder used by worker did not tip & scaffolding not collapse, tip or shift. The worker, the only witness to the accident, unable to provide any testimony or statement concerning how accident happened. As such, case was unlike those where plaintiff’s version of fall is uncontroverted as plaintiff is sole witness. Hastedt v. Bovis Lend Lease Holdings, Inc., 152 AD3d 1159;
Knowingly Using Defective Ladder. Sole Proximate Cause.
Second Dept. 2018.Plaintiff’s actions sole proximate cause of accident. Plaintiff testified he fell when the top rung of the ship’s ladder, which he knew was missing a bolt & which he had been sent up to the roof to replace, detached while he was in process of climbing ladder & after he had attempted to pull himself up by placing his hand on the top rung. Plaintiff testified there were other ladders and pipe scaffolding available to use at the site. Jones v. City of NY, 166 AD3d 739;
Worker Misuse of a Ladder.
First Dept. 2009. Issue of Fact. Conflicting Deposition Testimony as to Whether Adequate Ladder Was Misused. Plaintiff testified he was standing on an open 8-foot A-frame ladder placed sideways & secured about a foot from an open door to store manager’s office, when the manager bumped the ladder exiting his office. When store manager bumped the ladder a second time, plaintiff fell off ladder. Store manager testified he saw plaintiff lean a closed ladder against a wall, unsecured & that he warned plaintiff it was not safe. Also, while the ladder blocked the doorway to his office, there was enough room to enter the office. Such testimony raised issue of whether plaintiff misused an otherwise adequate ladder by leaning it, unsecured, against a wall. Santiago v. Fred-Doug, 68 AD3d 555;
Second Dept. 2016. Plaintiff Improperly Positioned Himself on Ladder, Causing Misuse of Ladder. 240(1) Dismissed. When plaintiff ascended the ladder, it was firmly on the ground and did not shake or move while he climbed to the third rung. To perform the task, plaintiff had to reach 4 feet to his right so that his upper body was on the right side of the ladder. A few seconds after he began working, the ladder tipped to the right, causing a fall to the ground. Held that plaintiff improperly positioned & misused the ladder, which was sole proximate cause of accident. Scofield v. Avante Contr. Corp., 135 AD3d 929;
Third Dept. 2014. Plaintiff was a pipe fitter and he was working in a bathroom installing pipes. As part of such work, plaintiff climbed a 10-foot wooden A-frame ladder he found leaning against bathroom wall. After climbing 5 feet from the floor, the bottom of the ladder slipped away from the wall, causing plaintiff to fall. Plaintiff’s negligence sole cause of accident.
1.A-frame ladder not designed to be used while in closed position;
2. Plaintiff acknowledged no reason he could not have opened the A-frame ladder;
3. A-frame ladder was in good working order;
4. Plaintiff’s awareness that not opening the A-frame ladder was contrary to his safety training;
Expert provided that even though ladder had no rubber feet and that there may have been dust and debris on floor, accident would not have occurred if ladder was used properly. Nalepa v. South Hill Business Campus, LLC, 123 AD3d 1190;
Third Dept. 2022. Issue of Fact. Ladder Misused as It Was Upside Down. Although plaintiff subject to elevation related hazard, issue of fact exist as to whether 240(1) violated as conflicting testimony as to who retrieved and set up the ladder that plaintiff was using or misusing upside down. Plaintiff and tavern manager blamed each other for placing the ladder upside down. Borelli v. JB IV, LLC, 209 AD3d 1121;
Disobeyed Instructions in Using Certain Ladder
First Dept. 2022. Issue of Fact. Foreman Testified Plaintiff Told Not to Use Specific Ladder. Plaintiff climbing up aluminum A-frame ladder, one of the legs of the ladder bent or twisted, causing a fall to the ground. However, plaintiff’s foreman testified he told plaintiff not to use such ladder, which did not belong to plaintiff’s employer. Rather, he was to use a fiberglass ladder provided by his employer. 3 fiberglass ladders were 15-50 feet away from location of accident. Plaintiff’s foreman testified he then removed the aluminum ladder to nearby dumpster and a laborer stepped on the ladder’s legs to bend it to make it unusable. 15 minutes later, foreman found plaintiff lying on floor with aluminum ladder next to him. Held that a jury could find plaintiff was sole proximate cause of accident. Breslin v. Macy’s, Inc., 211 AD3d 569;
Third Dept. 2007. 240(1) Dismissed. Plaintiff chose to use another ladder than one provided by supervisor. Ladder on which plaintiff was using at tome of accident was not the ladder supplied to him by his supervisor. Although plaintiff used the ladder provided by supervisor for part of the work, he chose to retrieve as smaller wooden ladder as it was easier to maneuver around the table and chairs in ballroom where he was working. Plaintiff’s conduct in opting to use piece of equipment out of convenience, instead of the otherwise adequate safety device provided to him by his supervisor, was sole proximate cause of accident. Torres v. Mazzone Admin. Group, Inc., 46 AD3d 1040;
Fourth Dept. 2014. Plaintiff’s Motion to Dismiss 240(1) Denied. Plaintiff fell from a wobbly ladder while painting kitchen walls at a nursing home. Plaintiff failed to establish that his decision to use a ladder a ladder he knew was defective instead of another available ladder was not sole proximate cause of accident. Piotrowski v. McGuire Manor, Inc., 117 AD3d 1390;
Accident Resulted From Separate Hazard
Fourth Dept. 2013. Accident Occurred When Plaintiff Stepped on Something After Stepping Off Ladder. 240(1) Dismissed. Immediately before accident, plaintiff standing on a ladder while vacuuming grain dust off the top of a hose rack. Plaintiff stepped off ladder & onto accumulated grain dust & a hose that was hanging off the rack, causing his ankle to twist. 240(1) dismissed as accident resulted from separate hazard wholly unrelated to the danger that brought about the need for the ladder in the first instance, an unnoticed or concealed object on the floor. Smith v. Nestle Purina Petcare Co., 105 AD3d 1384;
Contradicting Statements as to Cause of Ladder Fall
First Dept. 2024. Plaintiff allegedly injured while removing & replacing bricks on a building at construction site. Plaintiff testified he climbed extension ladder to retrieve materials necessary for the project. While climbing the ladder, the ladder suddenly moved, causing a fall of 8 feet. Defendant raised issue of fact by identifying various inconsistencies in plaintiff’s account of the accident, thus calling into question his overall credibility and the circumstances of the accident. Plaintiff testified inconsistently about the day he was injured, whether he continued working after the accident & whether he promptly reported the accident. Also, evidence showed plaintiff first went to the hospital at least several days after his employer terminated him for unexplained, repeated absenteeism. Simpertegui v. Carlyle House Inc., 227 AD3d 486;
Second Dept. 2023. Plaintiff’s summary judgment motion denied. Different versions how accident occurred. Plaintiff testified while standing on second rung from top of ladder & beginning his descent down ladder, ladder moved, causing loss of balance & 8-10 foot fall to floor. Where credible evidence reveals differing versions of accident, one under which defendants would be liable & another under which they would not, questions of fact exist making summary judgment inappropriate. Rivas v. Purvis Holdings, LLC, 222 AD3d 676;
Plaintiff Not Engaged in 240(1) Enumerated Activity While Using Ladder
Second Dept. 2014. Plaintiff went to a building to inspect AC unit his employer had installed to determine why one of the rooms in the building was not receiving cool air. As plaintiff ascended a permanently fixed ladder to a cinder block wall leading to the roof, he fell. 240(1) dismissed as plaintiff was not engaged in enumerated activity of 240(1). Action dismissed against S&V, which installed the ladder as S&V did not owe a duty to care to plaintiff, as plaintiff not a party to S&V’s contract with building owner. Plaintiff failed to present evidence that S&V launched a force or instrument of harm. Gdanski v. 5822 Broadway Assoc., LLC, 116 AD3d 658;
Records Contradicting Deposition Testimony of a Fall From Ladder
First Dept.
First Dept. 2018. Defendants raised triable issue of fact whether accident involved a ladder. 2 accident reports set forth plaintiff’s statement that while working on a ladder, he started feeling chest pains and his legs became unsteady or wobbly. Coworker observed the ladder in upright position. Plaintiff’s medical records not mention a ladder accident. Caminiti v. Extell W. 57th St., LLC, 166 AD3d 440;
Speculation. Defense.
First Dept. 2022. 240(1) Claim Dismissed. Speculation. Decedent’s Fall From Ladder Not Witnessed And No Circumstantial Evidence as to How Accident Occurred. Decedent was performing renovation work when he fell from extension ladder. No witnesses to the accident. Defendants established prima facie showing of summary judgment by demonstrating that no one was in position to establish the cause of the accident, as there was no direct or circumstantial evidence as to how the accident occurred. As the accident may have been caused by a misstep or loss of balance, rather than by defective or improperly secured ladder, any determination as to the cause of the accident by a trier of fact would be based on speculation. Public Adm’r of Queens County v. 124 Ridge LLC, 203 AD3d 493;
Second Dept. 2017. 240(1) Dismissed. Speculation. No evidence why decedent fell off roof of 2-story office building. Manzo fell to his death from the roof of a two-story office building. Manzo was asked his uncle to measure a window in the building. No witnesses to accident & unknown why Manzo was on the roof. Held that where there were several equally plausible explanations for Manzo’s death, which are not attributable to any negligence of Labor Law violations by defendant, any determination by trier of fact as to causation would be based on sheer speculation. Manzo v. 372 Doughty Blvd. Corp., 147 AD3d 930;
August 25. Exceptions to 241(6)’s Nondelegable Duty. Plaintiff Required to Show Defendant’s Notice of Dangerous Condition.
Premises owners, GCs and agents of owners and GCs, under 241(6), like 240(1), have a non-delegable duty. Such a duty means the only defense is where the plaintiff was the sole proximate cause of the accident. A premises owner or GC cannot assert it is not liable because a subcontractor controlled and supervised the injury producing work. However, there are 2 exceptions to this rule where a premises owner and GC may assert a lack of notice defense. Also, where the premises owner did not contract for the work, 241(6) action dismissed.
23-1.5(c)(3)
All safety devices, safeguards and equipment in use shall be kept sound and operable, and shall be immediately repaired or restored or immediately removed from the job site if damaged.
Was defendant on notice repairs were required? 23-1.5(c)(3) is one of those few Industrial Codes where plaintiff must establish defendant having notice of dangerous condition. Plaintiff must establish repairs were required. Although not mention inspections, 23-1.5(c)(3) requires defendants conduct inspections to learn whether repairs required. As such, defendants will be asked at depositions whether there was a scheduled review of equipment.
FirstDept. 2022.23-1.5(c)(3) Dismissed. City had no notice of a defect or dangerous condition of barricade railing system as required.Harris v. City of NY, 202 AD3d 624;
23-9.2(a)
23-9.2(a) Maintenance
All power-operated equipment shall be maintained in good repair and in proper operating condition at all times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance. Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement. The 240(1) servicing and repair of such equipment shall be performed by or under the supervision of designated persons. Any servicing or repairing of such equipment shall be performed only while such equipment is at rest.
First Dept.
First Dept. 2022. 23-9.2(a) Not Dismissed. Plaintiff’s deposition testimony that pallet jack was not working raised issue of fact as to possible violation of 23-9.2(a). That defendants not have actual notice of the defect not absolve defendants of liability, as plaintiff testified he gave his employer notice. While attempting to reverse a pallet jack, the pallet jack suddenly jumped back, causing plaintiff to fall. Nicholson v. Sabey Data Ctr. Props., LLC, 205 AD3d 620;
First Dept. 2014. No Actual Notice of Unsafe Hydraulics Condition. 23-9.2 Not Violated. While cleaning a concrete pump, with engine running, a swing tube in the pump swiveled, causing injury. Plaintiff was inspecting a ring or groove in the tube for residual grout & claimed the hydraulics causing pipe to move reengaged on their own, despite the fact that he had turned them off. 23-9.2(a) not apply as defendants had no notice of unsafe condition of hydraulics reengaging after they were turned off. Shields v. First Avenue Builders LLC., 118 AD3d 588;
Fourth Dept. 2020. 23-9.2(a). Issue of Fact Whether Notice Given. Plaintiff injured unloading a manlift from back of flatbed truck. To unload the lift, plaintiff climbed into lift’s basket, which extended from the body of the lift towards the front of the truck. Basket was one foot over the flatbed & flatbed was 3 feet off ground. As plaintiff tried to maneuver the lift, it unexpectedly rolled off back of flatbed to ground, causing the basket to come crashing down onto the flatbed. Court held issues of fact whether the lift was defective & if so, whether defendant had requisite notice of such defect. Plaintiff testified the lift could not be unloaded from the truck by using the truck’s winch as the lift’s freewheeling mechanism was defective, & further testified he reported the defect to his employer. However, another employee testified that he used the exact same lift approximately 100 times & had no mechanical issues. Shaw v. Scepter, 187 AD3d 1662;
Exception. Ownership Alone Not Sufficient for 241(6) Liability. Owner Not Contract For Work.
Court of Appeals. 2010. Plaintiff had trench collapse on him. Court has consistently held that ownership of the premises where the accident occurred, standing alone, is not enough to impose liability under 241(6) where property owner not contract for the work resulting in plaintiff’s accident. Ownership is a necessary condition but not a sufficient one. There must be some nexus between the owner & the worker, whether by lease agreement or grant of an easement, or other property interest. Here, there was no lease agreement or grant of an easement or other property interest creating a nexus between plaintiff & State. Plaintiff performing excavation work on State’s premises not by reason of any action of the State but by reason of water company’s obligation to repair a break in its water line. While plaintiff asserts water company’s repairs took care of the damage caused to State-owned roadway by the leak & removed a traffic hazard in emergency situation, whether property owner benefits in any sense from injury related work is legally irrelevant in determining whether Labor Law imposes a non-delegable duty. Morton v. State of NY, 14 NY3d 50;
Court of Appeals. 2009. 241(6) Dismissed. Where the property owner not contract for work performed on its property, there requires a nexus between owner & worker, whether by lease agreement or grant of an easement, or other property interest. Although accident occurred on HCIDA’s property, HCIDA not contract with Village of Frankfort to have a sewer line installed. Rather, it had no choice but to allow the Village to enter its property pursuant to a right of way & it did not grant the Village an easement or other property interest creating the right of way. Scaparo v. Village of Ilion, 13 NY3d 864;
August 25. Industrial Code Violation is Only Evidence of Negligence. Summary Judgment Cannot be Awarded on Industrial Code Violation.
As a violation of 241(6) is only evidence of negligence, as held by the Court of Appeals’ decisions, a motion Court cannot grant granting summary judgment on a 241(6) violation. Rather, at trial, the Court instructs the jury of the evidence of negligence finding but that such showing of negligence may not be determinative of whether a plaintiff is entitled to prevail on 240(1), 200, and/or common law negligence claims. As it is not determinative of liability, a finding of a 241(6) violation on a summary judgment motion does not start the clock ticking on interest should there be an award to plaintiff at trial.
Court of Appeals
Court of Appeals. 2022. Breach of a duty imposed by a regulation promulgated under 241(6) is merely some evidence of evidence, and contributory & comparative negligence are valid defenses to such claims. Footnote 2. Toussaint v. Port Authority of NY & NJ, 38 NY3d 89;
Court of Appeals. 1998. An owner or GC may, of course, raise any valid defense to the imposition of vicarious liability under 241(6) including contributory and comparative negligence. Rizzuto v. LA Wenger Contracting Co, Inc., 91 NY2d 343;
Fourth Dept. 2021. There is clear distinction between violation of administrative regulation promulgated pursuant to a statute and a violation of explicit provision of a statute proper; while the latter gives rise to absolute liability sans regard to whether the failure to observe special statutory precautions was caused by the fault or negligence of any particular individual, the former is simply some evidence of negligence which the jury could take into consideration with all the other evidence. Chrisman v. Syracuse Soma Project, LLC, 192 AD3d 1594;
However, decisions from the First and Second Departments hold an Industrial Code violation warrants summary judgment. Such decisions held summary judgment was proper where the Industrial Code violation was the proximate cause of the accident. Such holdings go beyond a finding of there being evidence of negligence.
First Dept.
First Dept. 2024. … [T]he evidence established 23-1.20(a) was violated and this violation was a proximate cause of plaintiff’s injuries. Thus, the lower court should have granted plaintiff’s motion for partial summary judgment on 241(6) claim. Bucci v. City of NY, 223 AD3d 453;
Second Dept.
Second Dept. 2019. Here, plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the issue of liability on the 241(6) cause of action by showing there were violations of certain relevant Industrial Code sections & that those violations were proximate cause of injuries. … Accordingly, the Supreme Court should have granted that branch of plaintiff’s motion which was for summary judgment on the issue of liability on the 241(6) cause of action. Ortega v. Roman Catholic Diocese Brooklyn, 178 AD3d 940;
August 24. Indemnification Obligation Results in Vertical Exhaustion of Priority of Coverage in First Dept. Second & Fourth Depts Follow Horizontal Exhaustion.
Comment. First Dept. decisions hold that where entity is obligated to provide contractual indemnification, horizontal exhaustion of policies not occur. Rather, exhaustion of primary policy of the entity having indemnity obligation triggers next up the same entity’s excess or umbrella policy, rather than other primary policies also triggered by the same occurrence, i.e., vertical exhaustion. As such, Bovis Lend Lease v. Great American, 53 AD3d 140 (1st Dept. 2008), which held all primary policies are to be exhausted before an excess policy triggered, is no longer the law in the First Dept.
Unlike First Dept. holdings, Second & Fourth Departments hold contractual indemnification not decide priority of coverage. Rather, before any excess policy is triggered, exhaustion of all triggered primary policies is required, i.e., horizontal exhaustion.
As Zurich policy was purchased for primary coverage, despite its “other insurance” clause whereby it would provide only excess coverage under certain conditions, & Diamond State policy was purchased only for excess coverage, Diamond State policy is last on the risk.
Rationale For Horizontal Policy Exhaustion. Primary policy is triggered before excess policy because of its higher premium. Umbrella or excess policy costs less than a primary policy.
First Dept.
First Dept. 2023. While NY’s horizontal exhaustion rule mandates all primary policies be exhausted before excess coverage is triggered, rules governing priority of coverage are inapplicable here. Since owner entitled to contractual indemnification from GC due to complete pass-through of liability, excess policy issued to GC must respond before primary & excess policies issued to owner. Scottsdale Ins. Co. v. Mt. Hawley Ins. Co., 213 AD3d 442;
First Dept. 2019. Named Insured’s Primary & Umbrella Coverage Both Triggered Before AI’s Own Policy. Arch Insurance sought to recover sums it incurred in settling personal injury action against its insureds, the owner & contractor. S&J Industrial Co. was subcontractor on job & employee of S&J brought action for injuries sustained at project. Nationwide issued primary policy to S&J. Such Nationwide policy provided AI coverage to any organization that S&J agreed to add as AI but only for liability “caused, in whole or in part,” by S&J’s acts or omissions in performance of such work. Nationwide issued to S&J an umbrella policy with additional $5 million limit in excess of primary policy & “any other collectible insurance.” It was found owners not actively negligent & as such, only vicariously liable. Testimony at trial showed S&J negligent in creating dangerous condition. AI coverage available to owners included both $1 million primary policy & $5 million excess limits with respect to contractual liability which S&J had pursuant to S&J’s contractual obligation to indemnify owners. Nationwide umbrella policy issued to S&J was triggered before Arch primary policy. Arch Ins. Co. v. Nationwide Prop. & Cas. Ins. Co., 175 AD3d 437;
Second Dept.
Second Dept. 2011. Vassar College hired Kirchhof Construction to perform work at Vassar. Vassar was insured by United Educators Insurance (UE) under primary policy & UE umbrella liability policy. Kirchhoff had CGL policy issued by ACE, umbrella policy issued by Diamond State Insurance & excess policy issued by Scottsdale. Kirchhoff employee brought action against Vassar for accident at Vassar work site. Contract between Vassar & Kirchhoff required Kirchhoff to name Vassar as AI. UE umbrella policy provided coverage was triggered only after exhaustion of UE primary policy & “any other insurance available to the Insured.” Such policy not a primary policy. Diamond policy provided it would pay the excess of the retained limit, which was defined as the sum of underlying insurance provided by the ACE policy (which is primary insurance) and “other collectible primary insurance.” Insurance policy purporting to be excess coverage but contemplates contribution with other excess policies or does not by the language used negate that possibility must contribute ratably with a similar policy, but must be exhausted before a policy which expressly negates contribution with other carriers, or otherwise manifests it is intended to be excess over other excess policies. Here, UE umbrella policy is clearly intended to be excess over Diamond policy, whereas Diamond policy contemplated contribution with other excess policies. As such, Diamond policy must be exhausted before UE umbrella policy is triggered. Also, as indemnity obligation under Scottsdale policy accrues immediately after Diamond policy is exhausted, Scottsdale policy must also be exhausted before UE umbrella policy is triggered. Vassar Coll. v. Diamond State Ins. Co., 84 AD3d 942;
Fourth Dept.
Fourth Dept. 2006. Zurich policy must be exhausted before Diamond State is required to contribute under its policy. Sahlem paid $43,750 for $10,000,000 in umbrella coverage under Diamond State policy. Ciminelli paid $414,277 for $1,000,000 in general liability coverage under Zurich policy. Diamond State policy is umbrella policy & its coverage is excess to other insurance, providing coverage only after exhaustion of other excess policies, while Zurich policy affords primary coverage. As Zurich policy was purchased for primary coverage, despite its “other insurance” clause whereby it would provide only excess coverage under certain conditions & Diamond State policy was purchased only for excess coverage, Diamond State policy is last on the risk. Cheektowaga Cent. School Dist. v. Burlington Ins. Co., 32 AD3d 1265;
August 23. Hazardous Openings at Construction Site. Different Results Under §240(1) & §241(6) Causes of Action in First Dept. Size of Hole Large Enough For Body to Fall Through. (Also see August 14)
Industrial Code §23-1.7(b)(1) states, “every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place or by a safety railing constructed & installed in compliance with this Part.” For 23-1.7(b)(1) to apply, appellate courts require the opening must be large enough for a worker’s body to fall completely through to the level below. Marte v. Tishman Constr, Corp., 223 AD3d 527 (1st Dept. 2024); Freyberg v. Adelphi, 221 AD3d 658 (2nd Dept. 2023); Coleman v. Crumb Rubbers Mfrs., 92 AD3d 1128 (3rd Dept. 2012).
Under 240(1), not all appellate courts require the opening or hole be large enough for a worker’s body to fall completely through, for 240(1) liability to be assessed.
First Dept.2021. 240(1) Liability Imposed. Fall into rebar opening up to his groin. While walking on a below-grade level, plaintiff stepped on piece of unsecured plywood that was partially covering a concrete hole, causing plaintiff’s right leg to fall into the hole up to his hip. That plaintiff’s fall occurred below grade level & that plaintiff not fall all the way through the hole, not take the case out of 240(1). Favaloro v. Port Authority of NY and NJ, 191 AD3d 524;
Second Dept. 2013. 240(1) Liability. While working on elevated subway tracks, a plank on which plaintiff was standing broke. Plaintiff fell part of the way through a catwalk to his thigh, catching himself with his arm. 240(1) applied to catwalk at issue as it was functional equivalent of scaffolding & not a mere passageway. Ramirez v. MTA, 106 AD3d 799;
While the above holding in Ramirez v. MTA, 106 AD3d 799 appears to conflict with the above Second Dept. holdings in Marte and Freyberg, asthe decision in Ramirez not address whether there was sufficient space for the entire body to fall through an opening, it likely is not held not to be in conflict with the Marte & Freyberg decisions. Whereas, the First Dept. decision in Favaloro specifically held such partial fall did not dismiss the 240(1) cause of action.
In the First Dept., Industrial Code 23-1.7(b)(1) may be dismissed where the hole or opening was not large enough for the worker’s body to fall through. Yet, the same hole or opening may result in 240(1) liability.
August 22. Engineer Not Liable Under 240(1). As No Control Over Injury Producing Work, Not an Agent of Owner of GC.
Trial Court. Supreme Court, NY County. Late at night, while carrying plywood for use on construction of pedestrian walkway, plaintiff fell into 2 ½ foot deep hole in the ground. Such hole was concealed by a black plastic tarp sheeting operating as moisture barrier. Defendant Entech’s sole duty was to inspect & report, denying it directed or controlled plaintiff’s work. Plaintiff, an employee of Restani, testified he was only supervised by Restani employees. Entech relied upon its role set forth in a contract. Hon David Cohen held that even assuming Entech had the right to stop unsafe work, it did not control or supervise the injury producing work. Absent such control, Entech, as an engineer, was never an agent of the premises owner or GC. An engineer usually makes periodic visits to the site to check on plans & specification. Engineer is not there to control the means and methods of subcontractors’ employees. Engineers held to same standard as other site subcontractors. If an engineer, site the contract duties in your motion. Haskins v. MTA, 2024 NY Slip Op 32916(U);
August 22. Premises Owner’s Contractual Indemnification Claim Dismissed Against Engineer. No Negligence Showing.
Haskins v. MTA, 2024 NY Slip Op 32916(U). Indemnity language obligated indemnification if the accident arose out of performance of engineer’s work AND if the accident arose from willful or negligent acts of the engineer. The engineer, as provided above, did not control or supervise the injury producing work, accident not result from engineer’s willful or negligent acts. Remember that an indemnification language requiring performance AND negligence is not required in every indemnity clause. A clause may only require an accident arising out of performance of work and not negligence. Not having to show negligence of a subcontractor provides a stronger indemnification argument for a premises owner & GC. A finding of negligence comes from a Judge or a jury, usually after a trial.
August 22. Site Engineer Not a “Consultant” Under Indemnification Clause.
Haskins v. MTA, 2024 NY Slip Op 32916(U). Engineer asserted it was a “consultant” which was to be provided indemnification by plaintiff’s employer. The term “Consultant” is defined to mean the consulting engineer or other person or firm hired by MTA to act on behalf of the engineer to perform certain services, including but not limited to design, study, or inspection relating to the project …” Plaintiff’s employer, Restani argued such description did not match up to the services the engineer, Entech, was performing. Hon David Cohen noted the rule of contractual indemnity provisions being strictly construed & should not be judicially rewritten to create obligations not unambiguously stated. Engineer denied indemnity.
August 22. Flagmen. Vehicle & Traffic Law §1214. Opening Driver’s Side Door in Traffic.
Second Dept. Plaintiff, a Con Ed employee performing road work, was injured when he opened the driver’s side door of his Freightliner truck & defendant’s vehicle struck the door. Plaintiff’s truck was parked on Broadway in Dobbs Fery, which was undergoing construction. Although the road was usually a 2-way road with one lane in each direction, due to the construction, flaggers held signs directing traffic into a single lane.
Vehicle & Traffic Law §1214 states, “no person shall open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably able to do so, and can be done sans interfering with the movement of other traffic.” Held that defendant failed to establish plaintiff’s alleged violation of §1214 was sole proximate cause of accident. Issue of fact whether plaintiff reasonably relied upon his observation of the flaggers in opening the truck door & whether defendant disregarded a flagger’s direction to stop prior to colliding with plaintiff’s truck. Angelastro v. Dyer, 2024 NY Slip Op 04237;
.
August 16. Industrial Codes; §200, Last Inspection; AI, Indemnification
Second Dept. Titov v. V&M Chelsea Prop. LLC, 2024 NY Slip Op 04221. Construction worker fell from temporary ladder while descending from the top floor to the floor below. Worker slipped and fell because construction debris or dust.
Industrial Code 23-1.7(e)(1) dismissed because it is limited to tripping accidents and plaintiff slipped here.
23-1.7(e)(2), which covers slipping and tripping accidents occurring in a work area. It was dismissed as the staircase was a “passageway” and not a “work area.”
GC’s motion to dismiss §200 was denied as it failed to show the last time it inspected or cleaned the staircase.
GC not entitled to contractual indemnification as the language indemnified the GC for its own negligence.
Breach of contract claim for failing to procure insurance and name the GC as additional insured was dismissed where the subcontractor, in response to the motion, provided the appropriate policy.
To establish common law indemnification, a party must prove not only that it was not negligent, but also that proposed indemnitor’s actual negligence contributed to accident.
August 14. Whether Entire Body Must Fall Through Hole For 240(1) Violation
Trial Court. NY County. In Rodriguez v. RXR Glen Isle Partners LLC, 2024 NY Slip Op 32789(U), the Hon. Richard Latin denied defendant summary judgment on a 240(1) cause of action where a construction laborer engaged in cleaning a room, fell into a hole up to his knee. Defendant argued 240(1) should be dismissed as plaintiff did not fall from a height. Citing Favaloro v. Port Auth. of NY & NJ, 191 AD3d 234 (1st Dept. 2021), it was held 240(1) applied even as plaintiff’s leg only falls partially into a hole.
Second Dept. appears to require for the hole or opening be large enough for the plaintiff’s body to fall through for 240(1) liability. A foot falling through a rebar hole insufficient for 240(1) liability. Johnson v. Lend Lease Constr., LMB, Inc., 164 AD3d 1222 (2018). Third Dept. also requires a hole large enough for entire body to fall through, even if plaintiff does not fall all the way through. Dos Santos v. State of NY, 169 AD3d 1328;
Industrial Code 23-1.7(b)(1)(i) which goes to hazardous openings, is violated if the opening is large enough for a person to fall completely through. Such code was dismissed here where there were no photos establishing a hole was large enough to fall through.
August 9. Fall From Makeshift Ladder Was 240(1) Violation. Plaintiff Not Recalcitrant Worker.
Not uncommon for workers to construct makeshift ladders at construction sites to obtain passage from one level to another. In Chiarella v. NYS Thruway Authority, 2024 NY Slip Op 04122, plaintiff, while working on Mario Cuomo Bridge, was attempting to descend from an upper level walkway to a lower walkway on the site, using a wooden pallet installed between the 2 levels by another worker. Such wooden pallet was used in place of a ladder. Stepping onto the wooden pallet, plaintiff reached for a handrail which swung away from him, causing a fall to the lower level. While defendant asserted plaintiff was sole proximate cause of accident by not using a readily available ladder, it was held insufficient evidence whether a proper ladder was readily available or whether plaintiff was instructed to use the wooden pallet rather than a ladder.
If a worker is shown to be recalcitrant, it means the worker was the sole proximate cause of the accident, resulting in dismissal of all causes of action. Defendant to establish recalcitrance by a worker, must establish 4 actions of plaintiff.
- Adequate safety devices were available to plaintiff at the work site.
- Plaintiff knew safety devices were available and that plaintiff knew he or she was expected to use such safety devices.
- Plaintiff chose for no good reason not to use the available safety devices.
- Plaintiff would not have been injured if plaintiff had used the safety devices.
August 8. Forklift Operator’s Misuse of Forklift Proximate Cause of Accident. 240(1) Dismissed.
Plaintiff was operating a forklift transporting scaffolding materials when it tipped over. Plaintiff testified he did not know what caused the forklift to tip over. Plaintiff had moved 5 loads of such materials before the accident. He testified the forklift was in good condition on the accident date. Another worker told plaintiff the load on the forklift was too heavy. Plaintiff disagreed. Plaintiff lifted the load as high as forklift blades would allow, which was 15 feet. Co-worker testified that because the load was so high, he could tell the load was going to swing once plaintiff began moving the forklift. However, plaintiff refused to lower the blades of the forklift.
Expert, Peter Chen, testified proximate cause of accident was plaintiff’s attempt to turn to quickly with the loads in maximum elevated position. Such improper use was warned against in the operator’s manual for the forklift. Mr. Chen also testified plaintiff was injured when jumping out of the forklift. According to the manual, the proper course of action in the event of a tip-over was to remain within the seat. As the accident not result from any inadequacy of the forklift, plaintiff’s misuse of the forklift was the sole proximate cause of the accident. Josan v. City of NY, 2024 NY Slip Op 32700(U); Hon. Kerry Ward; Supreme Court, Kings County.
August 8. Industrial Code 23-9.2(a) Dismissed in Forklift Accident. Notice Requirement.
23-9.2. All power-operated equipment shall be maintained in good repair and in proper operating conditions at all times … Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement.
Forklift tipped over. Held that as plaintiff testified the forklift was in good operating condition & defendants were not on notice of a defect or unsafe condition, 23-9.2(a) was not violated. Josan v. City of NY, 2024 NY Slip Op 32700(U); Hon. Kerry Ward; Supreme Court, Kings County.
August 8. 23-9.2(c) Issue of Fact Whether “Load Was Properly Trimmed.”
The forklift load shifted and started the events causing forklift to tip over. The belt strapping which was placed to keep the load trimmed and secured failed. The load shifted off center, causing the forklift to tilt sideways & fall over, according to plaintiff’s expert, Walter Konon. However, defendants’ expert, Peter Chen opined the proximate cause of accident was plaintiff turning too quickly with the loads in maximum elevated position. Issue of fact. Josan v. City of NY, 2024 NY Slip Op 32700(U); Hon. Kerry Ward; Supreme Court, Kings County.
August 8. 23-9.2(h) Not Violated in Forklift Accident.
23-9.2 applies to required roll-over protection and seat belts for any new self-propelled earth moving, excavating, or grading equipment or machines.
The forklift operated by plaintiff was equipped with both roll-over protection & a seatbelt. As such, 23-9.2(h) dismissed. Josan v. City of NY, 2024 NY Slip Op 32700(U); Hon. Kerry Ward; Supreme Court, Kings County.
August 1. Recalcitrant Worker Defense Denied. Plaintiff Not Instructed on Lanyard Use on Scaffold. (See also July 30 post)
Second Dept. In Amaro v. NYC Sch. Constr. Auth., 2024 NY Slip Op 04052, plaintiff, while on a scaffold, had a wooden plank break underneath him, causing a fall. Plaintiff, at the time, was wearing a safety harness with a 4 foot lanyard, which was not tied to the scaffold frame. Plaintiff testified that he did not tie the lanyard to the scaffold frame because he was carrying a pipe in one hand and a clamp in the other, preventing him from unhooking and re-hooking the 4 foot lanyard during the 20 foot walk to his intended destination on the scaffold. A worker is a recalcitrant worker, and thus the sole proximate cause of the accident when 4 events occur.
Adequate safety devices were available to plaintiff at the work site.
Plaintiff knew safety devices were available and that plaintiff knew he or she was expected to use such safety devices.
Plaintiff chose for no good reason not to use the available safety devices.
Plaintiff would not have been injured if plaintiff had used the safety devices.
Denying the defense of worker recalcitrance, it was held defendants presented no evidence plaintiff was instructed to tie and untie his lanyard walking on the scaffold and plaintiff refused to do so. Held that sudden breaking of the wooden plank was a 241(6) violation.
July 31. Labor Law 241(6) Dismissed as No Industrial Codes Alleged.
In Jahrmarkt v. ULM Holding Corp., 2024 NY Slip Op 32570(U), Hon. Lyle Frank, of the Supreme Court, NY County, dismissed the 241(6) action as plaintiff alleged no NY State Industrial Code violation. A 241(6) cause of action is dismissed where no such Industrial Code is alleged or where the Industrial Code alleged is a mere general safety statute or is inapplicable to the facts of the accident.
July 31. Plaintiff’s Fall From Lader Denied Summary Judgment on 240(1) Action. Failed to Show Inadequacy of Ladder.
In Jahrmarkt v. ULM Holding Corp., 2024 NY Slip Op 32570(U), the plaintiff’s motion for summary judgment on the 240(1) cause of action was denied, as there were issues of fact. Plaintiff testified that as he was climbing on the ladder, a tension sheave rack shifted, pulling his arm and body down. Defendants argued no defect with the ladder and plaintiff’s failure to secure the ladder and choice of ladder was sole proximate cause of accident. Held that plaintiff failed to establish that inadequacy or failure of a safety device was the cause of the fall.
July 30. Labor Law 241(a) Not Applicable as Plaintiff Not Fall More Than One Story
In Leopoldino v. 206 Kent Inv., LLC, 2024 NY Slip Op 32579(U), plaintiff, while working on a scaffold, slipped on wet plywood platform and claimed his leg fell into a hole in the plank of the scaffolding, causing a fall. §241(a) states,
“Any men working in or at elevator shaftways, hatchways & stairwells of buildings in the course of construction or demolition shall be protected by sound planking at least 2 inches thick laid across the opening at levels not more than 2 stories above & not more than on story below such men, or by other means specified in the rules of the board.”
Hon. Kerry Ward of Supreme Court, Kings County, held 241(a) not applicable unless plaintiff falls more than one story.
July 30. Requisites in Establishing Prima Case For Summary Judgment Where Motion Made Pre-Deposition.
Rambo v. Madison Halal Food Corp., 2024 NY Slip Op 32625(U), arose from alleged trip & fall when plaintiff was struck by metal barricade while walking along a sidewalk. A defendant, Schimenti Construction, moved to dismiss the action pursuant to CPLR 3212(b), by submitting affidavits from the Chief Financial Officer & Commercial Construction Superintendent of Schimenti. Affidavits were used as the motion was made pre-deposition. Affidavits provided that Schimenti only furnished certain labor, materials & services.
Affidavits also provided Schimenti neither controlled or supervised construction work being performed at or near exterior accident location. Schimenti was only responsible for interior work at the building. Such affidavits stated Schimenti neither owned or controlled the subject metal barricade. Hon. Hasa Kingo of the Supreme Court , NY County, ruled such affidavits “self serving.” There was evidence in the form of permits that Schimenti was the GC. Issues of fact of ownership of the barricade, whether barricades were placed for construction workers, purpose of barricades and actions taken by GC Schimenti.
The Judge noted, “… [I]t is generally atypical to grant summary judgment based solely on affidavits. Had Schimenti submitted contracts, plans, daily logs, or similar documentation, it might have had sufficient evidence to establish a prima facie.
Note. When moving for summary judgment before depositions are conducted, always request in your motion that in the event the motion is denied, the court will allow the motion to be brought again upon the completion of depositions. If not request such relief, the court may deny a subsequent motion stating you only get one bite at the apple.
July 30. Recalcitrant Worker Defense Denied. (Also see August 1 post)
In Zherka v. Hudson Meridian Constr. Group LLC, 2024 NY Slip Op 34127(U), Supreme Court, Bronx County, Hon Lucindo Suarez held plaintiff was not a recalcitrant worker. Plaintiff was struck by a falling beam when straps around the beam failed. Defendant did not demonstrate that adequate safety devices were available to plaintiff; that plaintiff knew such safety devices were available and that he was expected to use them, that plaintiff chose for no good reason not to do so and had plaintiff not made that choice he would not have been injured.
July 29. 10.5 Inch Fall Off Pallet Not Within 240(1) Protection. Not Elevated Height.
240(1) applies, in part, to workers suffering falls from elevated heights. As courts state, “there is no bright line rule minimum height differential that determines whether an elevation hazard exists.” In Palumbo v. CitiGroup Tech, Inc., 2024 NY Slip Op 32539(U), Supreme Court, NY County, Hon. Richard Latin, plaintiff’s job involved cutting and laying cement blocks. Performing such work, plaintiff stood on 2 wooden pallets. It was held that plaintiff’s fall off the pallets was not a fall from an elevated height under 240(1).
July 29. 241(6). Industrial Code 23-1.5(c)(3) Not Limited to Power Equipment
In Palumbo v. CitiGroup Tech, Inc., 2024 NY Slip Op 32539(U), where plaintiff fell from pallets breaking underneath him. Hon. Richard Latin, rejected that such code section was limited to unguarded or defective power equipment.
July 29. §200, Means & Methods of Work
In Palumbo v. CitiGroup Tech, Inc., 2024 NY Slip Op 32539(U), it was held that when a slat on a pallet on which plaintiff was working, broke, such accident arose out of the means & methods of work. Such holding was based upon deposition testimony that the pallet was installed to assist plaintiff in the performance of his work. Where a defendant may conclude the breaking of a pallet constituted a dangerous condition on the site, it is always best to argue both means & methods and dangerous condition when seeking dismissal of §200. Here, defendant would also argue that there was no notice the pallet slat was susceptible to breaking.
July 18. Motion Court. 240(1) Dismissed. Fall From Ladder Caused by Loss of Balance.
A loss of balance is a defense to a fall from a ladder. In Daniello v. JT Magen & Co., Inc., 2024 NY Slip Op 32414(U), Hon. Lyle Frank of Supreme Court, NY County dismissed a 240(1) cause of action where plaintiff allegedly fell from a ladder. Plaintiff was to install jacks and run low voltage cable wires, that were previously installed, above a drop ceiling. Using a 6-foot A-frame ladder to access the wires, plaintiff lost his balance and fell off the ladder. No evidence of a defect with the ladder. In moving for summary judgment, plaintiff contended the ladder tipped. It was held no evidence the lack or inadequacy of a safety device caused the accident.
July 18. Motion Court Dismisses Industrial Code 23-1.21(e) in Fall From A-Frame Ladder. Loss of Balance.
In Daniello v. JT Magen & Co., Inc., 2024 NY Slip OP 32414(U), 23-1.21 offered in support of a 241(6) cause of action was dismissed. Such code section states,
Stepladder footing. Standing stepladders shall be used only on firm, level footings. When work is being performed from a step of a stepladder 10 feet or more above the footing, such stepladder shall be steadied by a person stationed at the foot of the stepladder or such stepladder shall be secured against sway by mechanical means.
Plaintiff contended that where the A-frame ladder on which he was standing fell, there was no stable footing. However, where plaintiff testified he lost his balance, 23-1.21 was dismissed.
July 18. Motion Court Finds Plaintiff Not Recalcitrant Worker. No Instruction to Use Hoist. Comparative Negligence Not a Defense to 240(1). (See August 1 and July 30 posts)
In Rocha v. Skyline Restoration, Inc., 2024 NY Slip Op. 32416(U), plaintiff lifting wooden frame balcony from the ground to the second floor. Co-worker lost his grip on the wooden frame balcony, causing it to fall, striking plaintiff. There was testimony of there being a hoist onsite. However, no evidence such hoist was available to plaintiff at the time of the accident. It not disputed plaintiff’s request for a use of a hoist was denied. “Because there is no evidence that Plaintiff was instructed to use the hoist on site, he cannot be considered the sole proximate cause of the accident.” While there was evidence the proper means to hand the wooden frame balconies would have been to disassemble them prior to moving them, this was comparative negligence, which is not a defense to 240(1) action. Decision by Hon. Mary Rosado of Supreme Court, NY County.
July 18. Plaintiff’s Contradictory Statements Caused Motion Court’s Denial of 240(1) Motion.
In Pagliuca v. Broome Prop. Owner JV LLC, 2024 NY Slip Op 32408(U). Supreme Court, NY County, Hon. Mary Rosado, plaintiff, a marble setter, alleged that while installing large marble countertops in a kitchen, a stone fell between 7-9 feet, striking plaintiff. An employee of defendant was told by plaintiff, “I have been lifting these pieces of stone for 35 years and my arm is hurting.” Such statement raised issue of fact whether accident resulted from falling object.
July 12. Plaintiff Injured Stepping Off Ladder. No Fall From Height. 240(1) Dismissed.
In Cruz v. 11 Hoyt Prop. Owner, LP, 2024 NY Slip Op 50895(U), a Supreme Court, Kings County decision, plaintiff testified he fell when stepping on a 2 by 4 after descending a ladder. As such an accident did not occur at a height, the 240(1) action was dismissed. Hon. Aaron Maslow, wrote, “… Plaintiff alleges that he twisted his right ankle while either stepping off of a ladder or working at ground level. Under either scenario, Plaintiff was not exposed to the type of significant elevation-related risk that our Legislature intended to protect under the auspices of Labor Law §240(1).
July 12. Construction Manager Tishman Denied Summary Judgement.
In Prunty v. Port Auth. of NY & NJ, 2024 NY Slip Op 32412(U), decided by Hon. Leslie Stroth. Tishman’s motion for summary judgment denied. Plaintiff employed as laborer. Tishman’s safety manager testified he had no authority to direct work of subcontractors and that their means & methods were their own. However, he also testified to having the authority to make sure and supervise that they were performing the work according to guidelines required by Tishman and that he would walk the site, ensuring conditions were clean, conditions were safe, that workers carrying out work in safe manner and to find out exactly what workers were doing. Tishman performed daily inspection to ensure compliance with safety requirements.
July 11. §200 Dismissed Against Con Ed Where Plaintiff Was Electrocuted. 753 Mark-Outs.
In Macropoulos v. City of NY, 2024 NY Slip Op. 50899(U), Supreme Court, NY County, Hon. Hasa Kingo, worker engaged in excavation was electrocuted. §200 action dismissed against Con Ed. Excavators must call 811 to request code 753 mark-outs for roadway and or sidewalk work to perform safe digging & protect underground facilities. The call for mark outs is required to be made at least 2-10 days before excavation. Con Ed’s records search revealed that neither Turner nor Commodore made a Code 753 call. There is no statutory obligation for Con Edison to perform mark-outs, absent a request. Also, any duty of Con Ed to warn plaintiff of the dangerous condition was discharged when Turner & Commodore were notified the conduits were energized.
July 11. Pipe Falling From Ceiling During Demolition Work Was “Falling Object.” 240(1) Liability. Height Differential Not de Minimis.
In Rochez v. 222 Broadway Prop. Owner, LLC, 2024 NY Slip Op 32419(U), Supreme Court, NY County, Hon. Richard Latin, plaintiff, engaged in demolition work, was struck by a pipe falling from a ceiling. Plaintiff was picking up garbage on the ground when struck by the pipe. Plaintiff not required to show the pipe was being hoisted or secured when it fell, citing Quattrocchi v. FJ Sciame Const. Corp., 11 NY 3d 757 (2008). Plaintiff will rely on Quattrocchi when struck by falling object in an area where demolition occurs. Also held “regardless of how high the pipe was located, the height differential was not de minimis, given the amount of force the pipe was able to generate during its descent …”, citing Court of Appeals’ decision, Wilinski v. 334 E. 92nd Hous. Dev. Fund Corp., 18 NY3d 1 (2011).
July 2. Unsecured Ladder Struck by Falling Ductwork. 240(1) Liability Imposed.
Rivera v. 712 Fifth Ave. Owner LP, 2024 NY Slip Op 03562; First Dept. Plaintiff working in building undergoing demolition and renovations. Plaintiff was directed to remove metal ductwork from the ceiling of a bathroom of the building’s 35th floor. Plaintiff working alone on A-frame ladder to reach the ductwork, located 10-12 feet above the floor. After 2 hours, while standing on the ladder’s 4th rung, cutting a portion of the ductwork, the ductwork fell, striking plaintiff and ladder, causing a fall. 240(1) liability imposed as plaintiff not provided “any other safety protection except an unsecured ladder.”
The decision cited some of the usual 240(1) rules:
Plaintiff not required to prove the ladder was defective;
Summary judgment not precluded merely because no witnesses.
July 2. Accident Report Inadmissible. Author of Report Not Witness Accident.
Rivera v. 712 Fifth Ave. Owner LP, 2024 NY Slip Op 03562; First Dept. Plaintiff, engaged in demolition work, alleged he fell from a ladder when the ladder was struck by falling ductwork . 2 accident reports stated plaintiff fell from the ladder upon losing his balance. However, the authors of the accident reports were not witnesses to the accident. Authors not identify who provided such report information. Both reports deemed inadmissible hearsay.
Such accident reports were only a starting point for the defense. Investigation required as to who provided the information contained in the reports. Once that individual was identified, a deposition or affidavit from such individual as to what he or she witnessed would result in admissible evidence. As the author of the report was not an accident witness, but merely was told of the accident, the author’s written recitation of the accident received from another inadmissible hearsay. In support of its holding, the court cited, Garcia v. 122-130 E. 23rd St. LLC, 220 AD3d 463 (1st Dept. 2023).
Note the rule that inadmissible hearsay statements may be offered in opposing a summary judgment motion where such hearsay statements are offered in conjunction with admissible evidence. As such, if hearsay statements are the only evidence offered in opposing a motion, such hearsay statements are not allowed and will not defeat such a motion.
INDEX
Amending Bill of Particulars to add Industrial Code. September 12, 2024.
Breach of Contract. September 9, 2024;
Damages. Cervical spine surgery. September 25, 2024.; Lumbar spine surgery. September 9, 2024.
Evidence. September 10, 2024; August 28, 2024; July 2, 2024.
General Workplace Hazard Defense. September 6, 2024.
Homeowners’ Exemption to 240(1) & 241(6) Liability. September 19, 2024.
Indemnification. September 15, 2024; September 12, 2024; September 11, 2024; August 22, 2024.
Industrial Codes. 23-1.7(e)(2). September 21, 2024; August 25, 2024; July 31, 2024.
23-1.15. September 20, 2024.
23-1.21.(e). July 18. 2024.
23-9.2(a). August 25, 2024; August 8, 2024;
23-9.2(b)(1). September 21, 2024.
23-9.2(c). September 21, 2024; August 8, 2024.
23-9.6. September 19, 2024.
Insurance. Priority of Coverage For Primary Policies. August 24, 2024.
Labor Law Section 200. September 14, 2024; September 8, 2024; August 16, 2024; July 29, 2024; July 11, 2024.
Labor Law 240(1). September 21, 2024; 20, 2024; 16, 2024; 15, 2024; 13, 2024; 11, 2024; 6, 2024. August 26, 23; 22; 14; 9; 8; July 29, 2024; 18;, 12; 11 and 2.
Labor Law 241(a). July 30, 2024.
Recalcitrant Worker. August 1, 2024; July 30, 2024.
Site Engineer. August 22, 2024.
Summary Judgment Motion. August 30, 2024.
Vehicle & Traffic Law Section 1214. Flagmen. August 22, 2024.
Workers’ Compensation. Section 118. September 7, 2024.