Second Department Dismisses Labor Law 240(1) Claim for Injury Caused by Carrying Heavy Steel Beam, But Awards Contractual Defense Costs

In Sullivan v New York Athletic Club of City of N.Y., plaintiff's knee gave out while carrying a heavy beam on his shoulder down a flight of stairs with a co-worker. The plaintiff commenced an action alleging common law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). All motions and cross-motions for summary judgment were denied. On appeal, the Second Department dismissed plaintiff's Labor Law § 240(1) claim, finding that plaintiff’s injury was related to the weight of the beam being carried as opposed to an elevation-related risk. The Court further found that plaintiff could not recover under Labor Law § 240(1) for a fall on a permanent staircase.

In addition, the Court determined that although the third-party plaintiff was entitled to contractual defense costs, it would not be entitled to indemnification since the only remaining claim after the dismissal of plaintiff's Labor Law claims would be a claim for negligence. The Court observed that a party to a construction contract cannot be indemnified for its own negligence. Therefore, the Court held, "the third-party cause of action and cross claim for contractual indemnification asserted against [third-party defendant should be dismissed], except insofar as those causes of action sought defense costs."

Second Department Denied Summary Judgment Pursuant to Labor Law § 240(1) Where Issues of Fact Remained as to Sole Proximate Cause

In Lorde v Margaret Tietz Nursing & Rehabilitation Ctr., the plaintiff was injured when the inverted bucket that he was standing on tilted, causing him to fall. Plaintiff commenced an action alleging common law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The plaintiff then moved for summary judgment on the issue of liability with respect to his Labor Law § 240(1) claim. The lower court denied plaintiff’s motion and the Second Department affirmed finding that “[l]iability under section 240(1) does not attach when the safety devices that plaintiff alleges were absent were readily available at the work site, albeit not in the immediate vicinity of the accident, and plaintiff knew he was expected to use them but for no good reason chose not to do so, causing an accident”. The Second Department determined that plaintiff’s testimony, namely that he could not recall how many ladders were in the room at the time of his accident and that he did not know whether there were more than six ladders available at the job site, failed to eliminate all triable issues of fact as to whether there were ladders available and whether plaintiff’s decision to stand on the bucket was the sole proximate cause of his injuries.

Second Department Denies Summary Judgment to Plaintiff On His Labor Law § 241(6) Claim Where Issues of Fact Remain as to Plaintiff's Comparative Fault

In Cardenas v. 111-127 Cabrini Apartments Corp., the plaintiff was injured while painting when he fell from a ladder that had a defective supporting bracket that could become unlocked without warning. He commenced an action against the defendant alleging, in part, violations of Labor Law §§240(1) and 241(6). On the plaintiff's motion for partial summary judgment on liability, the lower court granted the plaintiff summary judgment pursuant to both Labor Law §§240(1) and 241(6). On appeal, the Second Department modified only insofar as the Court denied the plaintiff summary judgment on his section 241(6) claim - the Court affirmed summary judgment on the section 240(1) claim. The Court found that, although the Industrial Code provision relied on by the plaintiff had been violated, issues of fact nevertheless remained as to the plaintiff's comparative negligence. (see our recent blog post regarding comparative negligence and its affect on summary judgment here) 

First Department Finds Sole Proximate Cause In Labor Law Action Where Plaintiff Chose the Method of Securing Equipment That Fell and Contributed to His Injury

In Guido v. DASNY, plaintiff parked his truck on top of debris outside of a construction site where his employer was performing work, causing his truck to "tilt." As he was loading his employer's ladders into the truck, they slid causing him to fall to the ground. In dismissing plaintiff's Labor Law §§ 240(1) and 241(6) claims, the First Department found that the "tilt" was de minimis, and thus not an elevation-related hazard. The Court further found that the Industrial Code provision relied on by plaintiff, 12 NYCRR §23-1.7(e), regarding clearing debris did not apply because the area where he was injured was not a passageway or working area. And, plaintiff was nonetheless the sole proximate cause of his accident. Plaintiff chose the method for securing the ladders to the truck. After securing one ladder with a bungee cord, plaintiff chose to remove the bungee cord in order to secure a second ladder. The Court found that plaintiff could have instead used one of the several bungee cords that were available in order to separately secure the second ladder.   

First Department Allows Evidence of Post-Accident Repairs to be used to Establish Identity of Alleged Injury Producing Equipment

In Perkins v. NYCTA, the First Department affirmed the lower court's direction to the defendant to produce evidence of post-accident repairs in order to establish that a wheelchair ramp to be inspected was the same ramp on which plaintiff was allegedly injured. As an alternative, the defendant could provide an affidavit attesting to the fact that the wheelchair ramp to be inspected was the same ramp on the bus at the time of the accident.

First Department Seemingly Finds That Whether Ambiguity Exists in an Insurance Contract Depends on the Facts of the Case Rather Than the Terms of the Insuring Agreement

We had previously reported that in Dean v. Tower Ins. Co., the Court of Appeals had affirmed the First Department on a finding that the term "reside" in an insurance policy issued by Tower Insurance was ambiguous. This issue has appeared again in Tower Ins. Co. v. Zaroom, where the First Department has now found that the term "reside" is unambiguous. The Court specifically indicated that "under the circumstances of this action, as opposed to the circumstances in Dean v. Tower Ins. Co. of N.Y. (19 NY3d 704 [2012]), 'reside' is not ambiguous."

In Dean, the property owner was renovating the insured-property when a fire occurred. Although he did not reside in the house undergoing renovations at the time of the fire, he had spent a considerable amount of time at the house during the renovation, ate at the house and slept there on several occasions. By contrast, in Tower v. Zaroom, the Zarooms admitted that they did not reside at the insured-property. Clearly, therefore, where there was a question of fact in Dean as to whether the owner could be deemed to have "resided" at the insured-property at the time of the fire, there was no question of fact that the Zarooms did not reside at the insured-property.

The difficulty here is that, if the term "reside" was ambiguous in Dean, then it must likewise still be ambiguous in Tower v. Zaroom. The definition of the term has not changed, just the facts applied to the definition. Therefore, the effect of Dean and Tower v. Zaroom is that, unlike most other situations where ambiguity in an insurance contract is determined as a matter of law, whether the term "reside" will be found to be ambiguous is dependent on the factual circumstances of each individual case. 

Recent Second Department Decisions Highlight A Common Theme When Deciding Liability For "Defective Means and Methods" or "Defective Conditions" Under Labor Law § 200

In determining liability under Labor Law § 200, there are two principles that underscore most Labor Law § 200 cases (1) where liability can be imposed based on "defective means and methods" of the work and (2) where liability can be imposed based on a "defective condition" on the property. Both of these principles require either control over the work or control over the condition. Two recent decisions from the Second Department illustrate these principles.

In Zupan v. Irwin Contracting, Inc., the plaintiff was carrying a 30-foot long, 200-pound steel rafter on his shoulders and was injured when he attempted to place the rafter on the ground. He commenced an action against the general contractor and construction manager asserting claims, in part, under Labor Law § 200 and common-law negligence. Thereafter, the general contractor and construction manager separately moved for summary judgment. The Supreme Court granted the motions and the plaintiff appealed.

On appeal, the Second Department reversed summary judgment in favor of the general contractor finding that the general contractor had failed to eliminate material issues of fact, but the Court affirmed as to the construction manager. The Court found that this was a case involving defective means and methods and the general contractor had supervised the plaintiff and given him his daily work assignments.  In addition, the plaintiff alleged that the general contractor had given plaintiff specific instructions as to how to move the rafter and when plaintiff complained he was told "just do it."  Therefore, the plaintiff's testimony raised a question of fact as to whether the general contractor could be held liable under section 200 of the Labor Law.

In Kane v. Peter M. Moore Construction, Co., the plaintiff was working on a home renovation when he slipped and fell on a dropcloth placed on a staircase allegedly by the employees of another contractor. The Supreme Court denied both the homeowner's and contractor's motions to dismiss the plaintiff's section 200 claim. On appeal, the Second Department reversed as to the homeowner upon a finding that constructive notice could not be established, but affirmed as to the contractor upon finding that the contractor had failed to establish that it did not create the condition on which the plaintiff had fallen.