Thursday, December 31, 2015

First Department Holds That Beam Which Struck Plaintiff, Although Being Carried By Co-Workers At The Time, Was Nevertheless A Labor Law § 240(1) Hazard

In Bonaerge v. Leighton House Condominium, three workers were moving a structure of steel beams in the shape of an upside-down "U".  While the beams were being carried by two of the workers, the plaintiff walked along in preparation for assisting the workers to lower the beam to the ground.  As the beam was being lowered the workers lost control, the beam fell and struck plaintiff in the chest and knee before reaching the ground.  The First Department held that the beam required securing for the purposes of the work and that its height differential was not de minimis.  Although the defendant proffered an expert opinion that devices were neither necessary nor customary for the work, the First Department found the opinion to be "insufficient to establish the absence of a Labor Law § 240(1) violation."

The First Department did not discuss the Court of Appeals decision in Rodriguez v. Margaret Tietz Center for Nursing Care, Inc., in which the plaintiff was injured while lowering a 120-pound beam to the ground from seven inches above his head with the assistance of three co-workers.  The Court of Appeals held that the work in that case did not expose plaintiff to the special elevation related risks contemplated by Labor Law 240(1).  Instead, he was merely exposed to the usual and ordinary dangers of a construction site.

Wednesday, December 30, 2015

Second Department Finds Industrial Code § 23-1.5[c][3] to be Sufficiently Specific to Support A Labor Law § 241(6) Claim

In Perez v. 286 Scholes St. Corp., the plaintiff commenced an action against the defendant pursuant to Labor Law § 241(6) as predicated on an alleged violation of Industrial Code § 23-1.5[c][3], which provides that "[a]ll 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." The plaintiff was operating a grinder that lacked a safety guard.  A piece of sheet metal and a piece of the grinder struck plaintiff's hand, injuring him.

The Second Department found the Industrial Code provision relied on by plaintiff to be sufficiently specific to support a Labor Law § 241(6) claim.  More specifically, the Court compared the language of section 23-1.5[c][3] to section 23-9.2[a], which provides that "[u]pon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement." In Misicki v. Caradonna (12 N.Y.3d 511 [2009]), the Court of Appeals held that section 23-9.2[a] was sufficiently specific to support a Labor Law claim.  By comparison of the words "corrected by necessary repairs or replacement" in section 23-9.2[a] with "repaired or restored... or removed" in section 23-1.5[c][3], as well as the words "upon discovery" with "immediately if damaged," the Second Department found that, in light of the Court of Appeals' holding in Misicki, section 23-1.5[c][3] must also be deemed to be sufficiently specific to support a Labor Law claim.    

First Department Awards Conditional, Partial Contractual Indemnification

In Maggio v. 24 W. 57 APF, LLC, the First Department awarded conditional, partial contractual indemnification to an owner on a construction site.  In the construction management agreement with its contractor, the owner was to be indemnified "to the fullest extent permitted by law" for liability arising out of the negligence of its contractor.  The Court found that the language would entitle the owner to partial contractual indemnification for the percentage of liability "arising not from its own negligence but rather that of" the contractor.  Since no determination had been made as to either the owner's or the contractor's negligence, the Court merely granted the owner summary judgment on a conditional basis.