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.

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.     

Second Department Finds Report of Accident Investigation to Be Insufficient to Raise Question of Fact on Plaintiff's Labor Law 240(1) Claim

In Guanopatin v. Flushing Acquisition Holdings, LLC, the plaintiff was injured when a one ton pre-cast concrete plank fell onto plaintiff's hand from a jack being used to raise the plank.  In affirming summary judgment in plaintiff's favor pursuant to Labor Law 240(1), the Second Department found that the defendant had failed to raise a question of fact as to whether plaintiff was the sole proximate cause of his accident.  More specifically, the statement of plaintiff's employer that his accident investigation revealed that plaintiff disregarded a foreman's instructions to stop work and to not raise the plank to the maximum height level of the jack, were hearsay statements that, standing alone, were insufficient to defeat summary judgment.  

First Department Limits "Integral and Necessary" Test to Single Industrial Code Provision Under Labor Law 241(6)

In Singh v. 1221 Avenue Holdings, LLC, the plaintiff tripped over a screw protruding from a raised computer floor.  In affirming so much of plaintiff's Labor Law 241(6) claim as was predicated on an alleged violation of Industrial Code 23-1.7(e)(2), which pertains to alleged "tripping" hazards in "working areas" caused by "materials" or "sharp projections," the First Department found that the screw was "integral and necessary" to the raised tile floor.  In reinstating so much of plaintiff's Labor Law 241(6) claim as was predicated on an alleged violation of Industrial Code 23-1.7(e)(1), which pertains to alleged "tripping" hazards in "passageways" caused by "obstructions," the First Department expressly limited the "integral and necessary" test to 23-1.7(e)(2).  The Court did not provide a detailed analysis as to why it reached this conclusion, but instead it simply cited to its earlier decision in Thomas v. Goldman Sachs Headquarters, LLC,, 109 AD3d 421 (1st Dept. 2013).  

Second Department Affirms Disqualification of Plaintiff's Counsel in "Bad Faith" Action

In Van Nostrand v. NYCM Fire Ins. Co., the plaintiff recovered an underlying judgment against NYCM's insured, Froehlich, in excess of Froehlich's liability insurance with NYCM.  The plaintiff then took an assignment of Froehlich's "bad faith" claim against NYCM for refusal to settle within policy limits.  Plaintiff commenced this action as subrogee of Froehlich and NYCM moved to disqualify plaintiff's counsel on the basis that he represented plaintiff in the underlying action, and would therefore have to be a witness in the "bad faith" action.  The Supreme Court agreed and the Second Department affirmed. 

First Department Finds That A Falling Wall Posed A Labor Law 240(1) Risk

In Purcell v. Visiting Nurses Found. Inc., the plaintiff was standing on a closed A-frame ladder in the basement of a building that was undergoing a gut renovation.  As he pulled on a "c-channel" attached to the first floor framing, an unsecured terracotta wall on the first floor collapsed, knocking plaintiff off the ladder.  In distinguishing the case from Misseritti v. Mark IV Constr. Co. (86 NY2d 487 [1995]), the First Department concluded, without making a factual distinction, that the Court of Appeals in Misseritti had found that the hazard of a falling wall is an ordinary hazard of construction, whereas the wall at issue in the present case was an object that required securing for the purposes of the undertaking.  Clearly, the First Department was suggesting that because the wall was positioned above the plaintiff, rather than next to the plaintiff (Misseritti), plaintiff was exposed to an elevation-related hazard.  As to the closed A-frame ladder, since it had been positioned by plaintiff's foreman, the Court found that it was not properly placed to provide adequate protection. Therefore, the First Department reversed the lower court and granted partial summary judgment on liability in plaintiff's favor pursuant to Labor Law 240(1).