Court of Appeals Holds That A Coupling Is Not A Labor Law Safety Device

In Fabrizi v. 1095Ave/ of the Arms LLC, plaintiff was injured when a conduit pipe fell on his hand.  Plaintiff was an electrician relocating a “pencil box”, which provided access to telecommunication wires on each floor.  While moving a metal support that required him to drill holes in the wall and leaving the top conduit dangling from compression coupling, the top conduit fell, striking the plaintiff.  Plaintiff was granted partial summary judgment, reasoning that as the conduit was attached to the ceiling, it was not properly secured to protect plaintiff.

On appeal, the Appellate division modified the order to deny plaintiff summary judgment, as the plaintiff failed to illustrate that the lack of a protective device was the cause of the incident.  On appeal to the Court of Appeals, the High Court determined that the Appellate Division should have granted summary judgment to the defendants, “because they established as a matter of law that the conduit did not fall on plaintiff due to the absence or inadequacy of an enumerated safety device.”  This was because the compression coupling kept the “pencil box” together but was not designed for safety.  The Court of Appeals did not address the issue of foreseeability, which was a main topic of the Appellate Division’s decision.

Chief Judge Lippman dissented, urging that plaintiff established an entitlement to summary judgment since “his gravity-related injury was proximately caused by the defendants’ failure to provide an adequate safety device.”  He went further and emphasized that a tool capable of stabilizing the conduit pipe “would be precisely the sort of device contemplated by section 240(1).”  In addition, the dissent rejected the notion that plaintiff caused the accident as it occurred after he dismantled the “pencil box” since this was “standard procedure in the trade.”  However, the majority asserted that “section 240(1) does not automatically apply simply because an object fell and injured a worker.”

First Department Finds That LL 240(1) Applies Where Falling Object Struck Another Object Being Carried By Plaintiff, Resulting In Plaintiff's Injury

In Humphrey v. Park View Fifth Ave. Assoc. LLC, the plaintiff was carrying an 18-foot long stringer on his shoulder when a beam fell from above him and struck the stringer. The contact between the two objects caused plaintiff to fall to the ground and be injured. The Court found that, regardless of how high the beam was above plaintiff when it fell, the height differential was not de minimis, given the amount of force the aluminum beam was able to generate during its descent.  

First Department Finds Contractor Had No Notice or Authority to Control Dangerous Condition That Caused Plaintiff's Injury

In Stier v. One Bryant Park LLC, the plaintiff tripped over a piece of unsecured masonite outside of an elevator.  In dismissing the plaintiff's section 200 and common law negligence claims against the Contractor, Tishman, the Court observed that Tishman's awareness that the masonite needed "sprucing up" was insufficient to demonstrate that Tishman had actual notice that the masonite was not secured.  In addition, Tishman did not have the authority to correct the unsafe condition, in that the area where the accident occurred had been turned over to another contractor. 

Appellate Practice and Preservation Tips

Second Department Dismisses Appeal on Appendix Method
In Aguiar-Consolo v. City of New York, the Second Department dismissed an appeal from the denial of a CPLR 4404(a) motion to set aside a jury verdict, in that the appeal was perfected on the Appendix method and the appellants failed to include the full trial transcript.  As such, the Court found that the Appendix was inadequate to enable the Court to render an informed decision on the merits.

Second Department Finds Defendant Waived Right to a Mistrial
In Sweet v. Rios, the trial judge invited either of the parties to move for a mistrial to "clear up" certain matters, the defendant declined.  The Second Department therefore found on appeal that the defendants had waived the potential remedy of a mistrial, and could not argue on appeal that a mistrial should have been declared.

Second Department Finds Triable Issues Under Labor Law § 240(1) Where Plaintiff Fell From a Ladder

In Singh v.City of New York, the Second Department found that the mere fact that the injured plaintiff fell from a ladder did not, in and of itself, establish that proper protection was not provided.  Instead, triable issues of fact remained as to whether the ladder was inadequately secured and whether the injured plaintiff's actions were the sole proximate cause of the accident.

Courts Continue to Apply Labor Law "Cleaning" Factors Test

In Collymore v. 1895 WWA, LLC, the Second Department found that the defendant had failed to establish its prima facie entitlement to summary judgment and dismissal of the plaintiff's Labor Law 240(1) claim. The plaintiff was vacuuming an HVAC duct in his employment with Cunningham Duct Cleaning Company when he fell from a ladder. The defendant argued that the plaintiff was not engaged in "cleaning" within the meaning of the Labor Law. Applying the factors enunciated by the Court of Appeals in Soto v. J. Crew, the Second Department found that the defendant had failed to establish that the task was "routine, in the sense that it [was] the type of job that occurs on a daily, weekly or other relatively-frequent and recurring basis as part of the ordinary maintenance and care of commercial premises."

Governor Cuomo Appoints Four Appellate Judges

New York Governor Andrew Cuomo has appointed four justices to fill vacancies at the Appellate Division.  Justice Barbara R. Kapnick has been appointed to the First Department.  Justices Colleen Duffy, Hector D. LaSalle, and Joseph J. Maltese have been appointed to the Second Department.

These appointments take effect immediately.  With these appointments, two vacancies remain on the Second Department bench and two remain on the First Department bench.