In October of 2013, a "Hat-Trick" of decisions by the Second Department of the Appellate Division addressed lawsuits brought under the Labor Law and limited plaintiffs' claims against employers by employees who brought such actions. The cases involved claimed injuries by: (1) a bobcat excavating machine operated by a co-worker running over an employee's foot; (2) a fall from a roof while cleaning leaves from roof gutters of a residence in a condo development; and (3) work being done on an air conditioning unit on the roof of a church involving a fall from the roof.
- Antelope v Saint Aidan's Church, Inc., October 2013, Appellate Division, Second Department
Plaintiff was working on air-conditioning units on the roof of a church when he fell from a catwalk onto the church's roof. He commenced suit against the church and the Diocese of Rockville Centre, alleging violations of Labor Law Â§ 200 and common-law negligence.
Defendants moved to dismiss those claims, arguing plaintiff was unable to identify the cause of his fall without engaging in speculation. The trial court denied defendants' motion.
Labor Law Â§ 200 and Common-Law Negligence. The Second Department reversed and dismissed the Labor Law Â§ 200 and common-law negligence claims against the defendants on the basis that the plaintiff could not id entify the cause of his fall. A plaintiff's inability to identify the cause of the fall is fatal to the cause of action because a finding that the defendant's negligence, if any, proximately caused the injuries would be based on speculation. As plaintiff could not identify what caused him to fall, the record was devoid of any evidence of negligence or of a defective or dangerous condition that was the cause of the injury.
- Hull v Fieldpoint Community Assn., Inc., October 2013, Appellate Division, Second Department
Plaintiff was allegedly injured when she fell from a roof while cleaning out leaves from the roof gutters of a residence in a condo development. She performed her work in accordance with a contract between her employer and defendant Fieldpoint Community, requiring her employer to clean gutters and leaders; inspect, and caulk openings three times per year.
Plaintiff commenced suit alleging violation of Labor Law Â§ 240(1). The trial court granted defendants motion for summary judgment.
Labor Law Â§ 240(1). The Second Department held that although the statute applies to commercial "cleaning" which is not part of construction, demolition, or repair, such as commercial window washing and sandblasting, it does not apply to work that is incidental to regular maintenance, such as cleaning gutters of debris. Thus, defendants established prima facie entitlement to summary judgment, and dismissal of the action.
- Gonzalez v Perkan Concrete Corp., October 2013, Appellate Division, Second Department
Plaintiff's work crew was replacing a sidewalk in front of a NYC public school. As plaintiff leaned over to hammer a two-by-four piece of wood into a tree well so that cement for the new sidewalk could be poured around the tree well, a Bobcat excavating machine operated by a co-worker ran over his left foot.
Plaintiff commenced suit against Perkan, the SCA, the City, and the NYC Department of Education, alleging violations of Labor Law Â§ 241(6), Â§ 200 and common-law negligence. Perkan subcontracted with Manny P, plaintiff's employer, to perform the concrete work for the sidewalk. Defendants moved to dismiss the complaint, which the trial court granted.
Labor Law Â§ 241(6). Plaintiff relied on Industrial Code regulations Â§ 23-9.5(g) and Â§23-9.2(a),
Â§ 23-9.5(g) which requires "mobile power-operated excavating machines except for crawler mounted equipment" to be equipped with "an approved warning device so installed as to automatically sound a warning signal when such machine is backing." The Second Department held defendants failed to demonstrate that Â§ 23-9.5(g) was inapplicable because at the time of the accident, the Bobcat was being used as an excavating machine for excavating work within the meaning of Â§ 23-1.4(v)(18) and (19). Moreover, defendants failed to show that the Bobcat was equipped with the requisite device or that the Bobcat was not backing up when the accident occurred. Thus, the trial court should have denied defendants' motion, regardless of the sufficiency of the opposition papers.
Regulation Â§ 23-9.4(h)(4) governs "[p]ower shovels and backhoes used for material handling" and provides that "[u]nauthorized persons shall not be permitted in the cab or immediately adjacent to any such equipment in operation." Defendants demonstrated, prima facie, that Â§ 23-9.4(h)(4) was not violated since, as a member of the work crew replacing the sidewalk, the plaintiff was not an unauthorized person within the meaning of the provision
The Second Department reversed dismissal based on Â§ 23-9.2(a), which sets forth, among other things, that "upon discovery, any structural defect or unsafe condition in [power-operated] equipment shall be corrected by necessary repairs or replacement." Although plaintiff asserted this regulation in opposition to defendants' prima facie showing of entitlement to summary judgment, rather than in his complaint or bill of particulars, the First Department held this omission is not fatal to his claim.
However, the Second Department affirmed dismissal of the Â§ 241(6) claim based on regulation Â§ 23-9.2(b)(1), which the court held is "merely a general safety standard that does not give rise to a nondelegable duty under the statute." The Appellate Court held that the trial court erred in granting summary judgment dismissing the causes of action for common-law negligence and Labor Law Â§ 200 as against defendant Perkan. Under Labor Law Â§ 200, when a defendant lends allegedly dangerous or defective equipment to a worker that causes injury during its use, that defendant, in moving for summary judgment, must establish that it neither created the alleged danger or defect in the instrumentality nor had actual or constructive notice of the dangerous or defective condition. Perkan failed to demonstrate, prima facie, that it did not create a dangerous condition by providing Manny P with a Bobcat that was not equipped with a working backup alarm or that it lacked actual or constructive notice that the Bobcat was not so equipped. In light of Perkan's failure to make the requisite showing, the sufficiency of the plaintiff's papers in opposition in this regard need not be considered.