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.