First Department Holds That 4-12" Mis-Step Is Not An Elevation Related Risk, But Slippery Condition May Have Been Caused By Industrial Code Violation

In Cappabianca v. Skansa USA Building Inc., the First Department affirmed dismissal of Labor Law and common law claims except section 241(6) where the plaintiff fell on an unsteady pallet. The plaintiff was standing on a slatted pallet and was cutting bricks with a wet saw located on an adjacent pallet. The wet saw’s pan improperly leaked water and muck (from the bricks) onto the floor, which built up over days and weeks of use. When the plaintiff turned to stack a recently-cut brick, the pallet swiveled, causing the plaintiff to fall. The First Department held that section 240(1) did not apply because the plaintiff’s fall/misstep from the 4-12 inch pallet did not expose the plaintiff to the kind of elevation-related risks that trigger the scaffold law.

With two judges dissenting, the First Department affirmed dismissal of plaintiff’s claim under section 200 and the common law, noting that the water/muck condition was the result of the “manner and means of the work ” over which the defendants did not exercise supervisory control, and that the water/muck condition was not a dangerous condition of the premises. According to the majority, the water/muck condition was the result of the plaintiff’s employer’s negligence, and section 200 does not allow for vicarious liability against an owner or general contractor. By contrast, the dissent argued the section 200 and the common law claims should be reinstated because the water/muck could become a dangerous premises condition over time or the origin of the water might be the result of a separate dangerous premises condition that allowed rainwater to accumulate on floors.

The First Department reversed and reinstated the plaintiff’s claims under section 241(6), finding that there were triable issues under two industrial code provisions (1) prohibiting worker use of elevated working surfaces set in a slippery condition and requiring the removal or covering of water or foreign substances that may cause slippery footing and (2) requiring repairs or replacement of defective or unsafe “[power-operated] equipment.” The First Department rejected, however, plaintiff's claim under the section on hazardous openings, noting that it did not apply to the 3-6 inch openings between slats on the pallet. Similarly, a provision related to vehicular and pedestrian traffic was inapplicable to the slatted pallet on which plaintiff worked; a provision regarding wet footing did not apply because plaintiff testified that he wore rubber-soled work boots that adequately protected him; and a provision on tripping hazards did not apply where plaintiff did not trip on an accumulation of dirt or debris.

First Department Holds That Replacement of Light Sockets Is "Routine Maintenance"

In Picaro v. New York Convention Center Development Corp., the plaintiff, a "house electrician" was injured "fixing" a light fixture.  He testified that he performed this task "twice weekly" and that most electricians would simply change the entire fixture when performing such work.  His supervisor attested to the fact that the high-voltage nature of the lights caused the sockets to deteriorate, which again required them to be replaced on a routine basis.  Based upon the foregoing, the First Department held that plaintiff's work clearly involved the replacement of worn-out components, which is not a Labor Law protected activity.

Second Department Strictly Construes Insurance Policy Language Regarding "Excess" Coverage

In Utica Mut. Ins. Co. v. Geico, the Second Department found that Utica was excess over Geico based upon the following comparison of the respective insurer's policy language.  The Utica policy indicated that it was "excess over, and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis."  By comparison, the Geico policy indicated merely that it was "excess over any insurance," without reference to contribution.  Citing State Farm Fire & Cas. Co. v LiMauro (65 NY2d 369, 375-376), the Second Department held that because the Utica policy had expressly negated contribution, whereas the Geico policy was silent in this regard, Utica was excess over Geico.