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LABOR LAW 2009-2010 UPDATE

DANIEL R. SANTOLA Powers & Santola, LLP 39 North Pearl Street, 6th floor Albany, NY 12207 (518) 465-5995

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TABLE OF CONTENTS I. INTRODUCTION A. Under What Circumstances Will §240 apply? 141 1. Falling Workers 144 2. Falling Objects 145 B. Injuries Occasioned by Extraordinary Elevation-Related Hazards vs. Typical Hazards on any Construction 146 C. Falls from Ladders 147 1. Improper Placement or Unsecured Ladders 147 D. Falls Involving Trucks and Other Vehicles 148 E. Permanent Stairways and Other Permanent Structures 149 F. Elevators 149 II. WHAT TYPE OF WORK DOES SECTION 240 COVER? 149 A. Demolition and Salvage Work 149 B. Repair Work vs. Routine Maintenance or Manufacturing 149 C. Alteration Work 150 D. Painting 151 E. Cleaning Work 151 F. Pointing 151 III. WORK ASSOCIATED WITH, OR AN INTEGRAL PART OF, A COVERED ACTIVITY 151 IV. BUILDING OR STRUCTURE 152 V. THE CLASS OF PEOPLE COVERED UNDER §240 152 VI. WHO IS RESPONSIBLE UNDER §240 – CONTRACTORS AND OWNERS AND THEIR AGENTS 154 VII. PROCEDURAL ISSUES 157 A. Summary Judgment Motions Under §240 157 B. Necessary Facts to Prove a Violation or Defense under §240 157

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C. Breach of the Statute 158 D. Unwitnessed Accidents 159 VIII. PROXIMATE CAUSE 159 A. Recalcitrant Worker Doctrine/ Blake Defense 160 IX. ADEQUACY OF THE SAFETY DEVICE 162 X. SUPERSEDING CAUSE 165 XI. WHEN DOES §241(6) APPLY? 166 A. Must Plead and Prove a Specific Industrial Code Rule Violation 166 B. The Rule Must Apply to the Facts Which is a Matter of Law, Not One of Fact 166 C. Scope of Work Covered by §241(6) 168 D. Type of Activity Covered by Industrial Code 168 E. Notice 169 F. Proof of Negligence and Proximate Cause Required 169 G. Class of People Covered by §241(6) 169 H. Who is Responsible Under §241(6)? 170 I. Claim Premised Upon §241(8) 172 XII. DEFENSES UNDER §240 AND §241 172 A. One- and Two-Family Homeowners Statutory Exemptions 172 B. Comparative Negligence 174 C. Engineers and Architects 174 D. Workers’ Compensation 174 E. Grave Injury 174 F. Special Employee 174 XIII. CONFLICTS OF LAW ISSUES INVOLVING A LABOR LAW 174 XIV. LIABILITY OVER: INDEMNIFICATION/CONTRIBUTION 174 XV. PRE-EMPTION OF FEDERAL ADMIRALTY LAW 177 XVI. SECTION 241-a: LIABILITY 177

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XVII. SECTION 200 178 XVIII. NOTICE OF CLAIM 180 XIX. SECTION 202: WINDOW WASHER STATUTE 180 XX. UNDOCUMENTED ALIEN WORKER 180 XXI. MISCELLANEOUS 181

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Copyright © 2010 by Daniel Santola. All Rights Reserved.

I. INTRODUCTION A. Under What Circumstances Will §240 Apply? Runner v. New York Stock Exchange, Inc., 13 NY3d 599 (12/17/09) This decision rejects the decades-old belief that section 240(1) will apply only when the plaintiff is exposed to an elevation differential or when an object (one which is being raised, lowered, or needs to be secured) falls and strikes the plaintiff. This case reached the Court of Appeals upon certification by the Second Circuit, U.S. Court of Appeals. Runner was injured while attempting to lower an 800 pound reel of cable down a set of approximately four steps at the New York Stock Exchange. He was directed to tie a rope around the reel and extend the rope, wrapping it around a metal bar placed across the doorway with the plaintiff and his co-worker holding on to the rope, essentially acting as a counterweight. When the other two co-workers began to guide the reel down the stairs, the plaintiff lost control of the rope and injured his hand between the rope and the bar. The jury returned a verdict in favor of the defendant finding that the injury was not attributable to a gravity-related risk. The trial judge set aside the verdict and granted plaintiff judgment as a matter of law. The Second Circuit stated that if the plain language of section 240(1) were to apply then obviously plaintiff should prevail, but also noted that there are several cases which seem to place “artificial limits” on the statutory duty. Hence, the Second Circuit asked guidance from the Court of Appeals. The defendant's position was that the injury was not caused either by the plaintiff falling from an elevated height or by being struck by the 800 pound reel and, therefore, under Ross v. Curtis Palmer, 81 NY2d 494, and Narducci v. Manhasset, 96 NY2d 259, section 240(1) did not apply. The Court, however, pointed out that neither of these decisions "purports exhaustively to define the statutes’ protective reach." Instead, the governing rule is that section 240(1) was designed to prevent accidents in which scaffolds, hoists, stays, ladders, and other protective devices would provide adequate protection from the harm flowing directly from the application of gravity. Such situations are not limited to only those injuries caused by the plaintiff falling and/or objects falling on the plaintiff. The relevant inquiry is whether the harm flows directly from the application of the force of gravity to the object, causing the harm which protective devices of the type delineated in the statute would normally prevent. Here, the harm to Runner was the direct consequence of the application of the force of gravity to the reel to the same extent as if the injury was caused by the plaintiff being in the path of the descending reel. The Court dispensed with all the cases cited by defendant, stating that until this case arose, the Court of Appeals had never had the occasion to address the issue of whether plaintiff can recover only when the injury is caused directly by falling or being struck by a falling object. The Court also rejected the notion that the distance the reel had descended was de minimis, stating that due to the weight of the object, considerable force would be generated even over a relatively short descent. NOTE: This unanimous decision written by Chief Judge Lipman significantly alters the scope of section 240(1). No longer does the plaintiff's injury have to be shown to be a direct consequence of falling from one height to another, or caused by an object falling from one height to a lower level, striking the plaintiff. The focus of attention should be upon whether the injury to the plaintiff was a direct consequence of the force of gravity, all of which could have been prevented if one of the enumerated safety devices could have been employed. Potter v. Potter Lumber Co., ____ AD3d ____ (4th Dept. 03/26/10) In using the criteria announced in Runner v. NYS Stock Exchange, the Court found that the plaintiff was entitled to a directed verdict on his 240(1) claim at the close of the proof. Plaintiff and three other workers were standing on the back of a forklift, acting as counterweights for the heavy load the forklift was using to remove metal sheets from a flatbed truck. The operator could not control the descent of the lift, resulting in the forklift tipping forward and throwing the plaintiff 10 feet into the air. The forklift had a rated operating capacity much less than the weight of the load, resulting in harm directly flowing from the application of the force of gravity upon the load being hoisted by the forklift.

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Luongo v. City of New York, ____ AD3d ____ (1st Dept. 04/29/10) Plaintiff was attempting to raise a heavy steel girder an inch or so with a hydraulic jack. The jack was not sufficiently tall enough, so 12 x 12 plates of steel were placed on top of the jack. Plaintiff had to hold the plates in place because they kept falling out before the jack could be raised enough to place them under pressure. The girder being raised was too heavy for the jack, which “jumped and then the steel fell down,” causing injury to plaintiff. The Court first found this to be repair-type work covered under section 240(1). Next, the plaintiff was injured while raising the girder due to the absence or inadequacy of the safety device. This was not like Narducci, 96 NY2d 259, where the plaintiff was injured by a falling part of a building that was not being worked on. Neither the jack nor the plates were part of a pre-existing structure and, therefore, they needed to be secured. The fact that the girder was not being raised significantly above the plaintiff’s head does not defeat his section 240(1) claim, citing to Runner v. New York, 13 NY3d 599. This was an accident caused by the consequences of gravity. “Rather than using plaintiff as the securing device contemplated by the statute, he should have been provided with one instead.” Strangio v. Sevenson Envtl. Services, ____ AD3d ____ (06/18/10) This is a 3:2 decision involving the application of the principles under Runner v. New York Stock Exchange to specific facts presented by this case. Plaintiff was raising a section of scaffolding by using a hand-operated hoist mechanism. He was struck in the face by the handle on the wench when the section he was attempting to lower began an “unchecked descent.” The majority believed this did not give rise to a section 240(1) claim since they felt the worker was not injured from harm directly flowing from the application of the force of gravity to an object or person, citing to Runner. They believed the facts amounted to nothing more than an injury which was only tangentially related to the effects of gravity. The dissent viewed the accident as being exactly within the domain of Runner. Specifically, the dissenters pointed out that the wench was designed to prevent uncontrolled descent by use of a gear lock dog device which malfunctioned, causing this unchecked descent. Apel v. City of New York, 73 AD3d 406 (1st Dept. 05/04/10) Plaintiff was working on a barge, assisting a crane operator in raising a 125 pound “keeper pin” to be inserted into an 80 foot long rod anchor. As plaintiff was inserting the pin, the crane dropped the anchor and the pin came up “like a see-saw,” snapping plaintiff’s arm and throwing him across the deck of the barge. The Court held, “there can be no question that the harm to plaintiff was a direct consequence of the application of the force of gravity to the [anchor].” Runner, 13 NY3d 599. Rivera v. 800 Alabama Ave., LLC, ____ AD3d ____ (2nd Dept. 02/09/10) Plaintiff was working upon an unsecured extension ladder which slipped out from underneath him. As the ladder slipped, plaintiff grabbed a vertical metal stud to prevent his fall and in doing so cut his right hand on the metal stud. Referring to Runner v. NY Stock Exchange, the Court held plaintiff had established his right to summary judgment on the section 240(1) claim. Salazar v. Novalex Contracting Corp., ____ AD3d ____ (1st Dept. 04/01/10) This 3:1 decision reflects a marked difference of opinions surrounding the legislative intention behind the enactment of section 240(1,) as well as how it should be applied. There is also a hint of judicial activism in this decision. The facts not in dispute are that plaintiff, a concrete worker, was engaged in spreading concrete in the basement of a building. As he was walking backwards, pulling a tool to level out the concrete, he accidentally stepped into a trench about 3 feet deep, 2 feet wide and several feet long. There were no safety devices provided to prevent his fall into the trench. The trenches were dug to accommodate sewer pipes running through what was to be the basement floor. It was intended that these trenches would be backfilled with concrete by the plaintiff and his father. What was not agreed upon amongst the judges was whether the record reflected the situation where plaintiff was engaged in a continuous pouring and spreading of the concrete to cover not just the floor, but also the trenches, and whether it was feasible to provide railings, planking, or the devices covered by the statute and still accomplish the task of pouring the floor and backfilling the deeper trenches.

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The motion court dismissed the section 240(1) case because the “accident did not result from a fall from a significant height or gravity-related risk that could have been prevented with the use of one of the protective devices enumerated in the statute,” and it dismissed the section 241(6) claim based upon 12 NYCRR 23-1.7(b) because the plaintiff “did not fall through an opening to a level below.” The majority, in an opinion by presiding judge Mazzarelli, reversed the motion court and reinstated both of plaintiff’s claims, citing to Carpio v. Tishman, 240 AD2d 234, a 1997 1st Department case. There, the plaintiff, who was a painter, was walking backwards as he was painting the ceiling of a room when he accidentally stepped into a trench in the floor that was 10-14 inches wide and 3 feet deep. In this case, the Court determined section 240(1) did apply. Judge Friedman, in a tenacious dissent, disagreed principally upon Rocovich v. ConEd, 78 NY2d 509, where the plaintiff accidentally stepped into an unprotected trough, 12 inches deep and 18-36 inches wide, that was carrying a stream of hot oil. The Court determined that the circumstances did not give rise to an elevation hazard of the type contemplated by section 240. Also, Judge Friedman referred to Toefer v. Long Island R.R., 4 NY3d 399, in which the Court held that a fall from a flatbed truck that was being unloaded did not give rise to a section 240(1) claim. The dissent went on to cite several other cases, including several from other departments, in which appellate courts concluded various factual scenarios of workers falling into, or accidentally stepping in, holes, trenches, elevator pits, subfloor access channels and other types of openings ranging from 12 inches deep up to 5-6 feet deep, were held not to present an exposure to an elevation hazard. The majority opinion concluded that these cases were all distinguishable on their facts. NOTE: This is another example of how any argument or point of view concerning the application of section 240(1) to a given set of facts can be supported by numerous appellate decisions. The real dispute is not about prior holdings or legal principles. It is about the nature of section 240(1) itself. In other words, what is section 240(1) all about? The majority opinion essentially concludes that plaintiff was working in an area where he could accidentally step into an opening 3 feet deep and sustain a gravity-related injury. The dissenting opinion suggests that section 240(1) should not apply unless there is a showing that one of the enumerated devices in the statute could have prevented the accident while also permitting the work to be conducted. Also, the dissent accuses the majority of “an unnatural restrictive reading [of the prior case law], in effect limiting such precedents to their facts while studiously ignoring the principle governing the reach of the statute there articulated,” then cites to a criminal case for the proposition that “nothing in these Court of Appeals decisions supports the majority’s assumption that the Court of Appeals ‘intended to tether the application of its holding to the particular circumstances of those cases’.” In response to this assertion, I would point to Zimmer v. Chemung Co., 65 NY2d 513, in which the Court of Appeals proclaimed that the statute required a safety device to be provided even where the defense is that it cannot accomplish the job in an efficient manner if we use any of the standard safety devices. Further, many of the Court of Appeals decisions are fact specific. The Court has always decided Labor Law cases on specific facts applied to the interpretation of the legislative intent behind the statute and not on any “bright-line standard.” Rocovich itself warns that section 240(1) is not premised upon a specific measure of height. It is to be applied not on the basis of how far a worker falls, or could fall; it is based upon protecting workers from falls which can foreseeably occur and result in injury. Moreover, section 240(1) is a remedial statute and, as such, the Court of Appeals still holds that it is to be interpreted as liberally as necessary to achieve the purpose behind the statute. Requiring a plaintiff to demonstrate that a safety device could be used and that he could still carry out the work in an efficient manner, or to have the plaintiff fall a minimum height, are not requirements to establish a cause of action under section 240(1). I do not believe that any judge should engage in adding further requirements to the establishment of a valid section 240(1) cause of action on the basis of a personal conclusion of what is practical, customary or appropriate. Ortiz v. Varsity Holdings, ____ AD3d ____ (2nd Dept. 07/13/10) In a very brief decision, the Court affirmed dismissal of plaintiff’s section 240(1) cause of action arising out of his accidental fall from a six foot high dumpster in which he was rearranging debris.

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Sinkaus v. Regional Scaffolding and Hoisting Co., ____ AD3d ____ (1st Dept. 03/11/10) The plaintiff’s section 240(1) claim was dismissed since his injury, which occurred while co-workers were pushing a material cart up a steep ramp, causing it to run over plaintiff’s foot, was held not to be a gravity-related injury since the dynamics were actually opposing the forces of gravity. 1. Falling Workers Collado v. City of New York, ____ AD3d ____ (1st Dept. 04/06/10) Plaintiff, a dock builder, was standing on a fender near the Third Avenue Bridge when he lost his footing, ten feet into the river, and drowned. The Court granted plaintiff summary judgment on the section 240(1) claim finding that no safety devices were provided to prevent his exposure to the elevation-related hazard of falling. The City's argument that he was given a life vest and failed to use it was inadequate to defeat the motion. The Court also found that the fender he was upon was a work location within the meaning of 123 NYCRR 23-1.7(c) and there was evidence that the absence of a continuously patrolling boat as required under Industrial Code Rule 23 could be a proximate cause of his drowning resulting in a violation of Labor Law 241(6). Tafelski v. Buffalo City Cemetary: 68 AD3rd 1802 (4th Dept. 12/30/10) Plaintiff was working on a scaffold adjusting clamps on a header beam. A co-worker was standing above the plaintiff on the partially constructed roof, laying plywood panels on the joist. The co-worker dropped a plywood panel over the area where plaintiff was working, causing plaintiff to lose his balance and slip several rungs down the scaffold. The Court granted plaintiff summary judgment on his section 240(1) claim, stating this was not a usual and ordinary risk of a construction project, but one of the ultra-hazardous activities of working at heights. Avila v. Plaza Constr. Corp., 73 AD3d 670 (2nd Dept. 05/04/10) Plaintiff was assisting in the pouring of a concrete basement floor. He was attempting to clean out one of the large hoses used to pour the concrete when one of its clamps hit him in the head, causing him to lose his balance and fall in between a one-foot square opening created in the rebar grid that was previously laid. His leg went down three feet into the hole causing a fracture. The Court dismissed the section 240(1) claim, since the opening “which was clearly not of a dimension that would have permitted the plaintiff’s body to fall through and land on the dirt floor below, did not present an elevation-related hazard.” Harris v. Hueber-Breuer Construction Co., ____ 67 AD3d 1351 (4th Dept. 11/13/09) Plaintiff claimed injury to his neck when he was descending a multi-level scaffold from the roof of a building under construction. When he arrived on one of the scaffold’s tiers, which was not fully planked over, he was injured in his attempt to prevent falling through the unplanked floor. The Court reinstated plaintiff’s section 240(1) claim, stating that his injury was proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk, despite the fact that he did not fall to the ground. There were factual issues as to whether there was a safer method of descending from the roof, which required a trial. Also the Court reinstated the section 241(6) claim premised upon 12 NYCRR 23-1.7(f) and 23-5.1(e)(1) and 23-5.3(f). Wild v. Marrano, ____ AD3d ____ (4th Dept. 07/02/10) The plaintiff slipped while on a plank that partially covered an excavation pit, resulting in his fall into the excavation. The Court affirmed summary judgment to plaintiff on the section 240(1) claim, since plaintiff’s fall from ground level into an excavation is “the type of elevation-related risk for which Labor Law Section 240(1) provides protection.”

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2. Falling Objects Keane v. Chelsea Piers,L.P., ____ AD3d ____ (1st Dept. 3/30/10) Plaintiff was working under a pier on a floating stage on which he was kneeling when the action of waves caused the platform to suddenly drop, causing a board he was sawing to fall upon him. The Court held that the injuries caused by the falling board were within the scope of section 240(1) because “the swing in elevation of the stage due to tides and waves was understood,” requiring protective devices to prevent the board from falling. However, the Court made a distinction disallowing recovery for injuries caused “by the wave lifting him up and knocking him against the bottom of the pier” he was working on. Ravinov v. Popeye's Popyork, ____ AD3d ____ (2nd Dept. 12/22/09) Plaintiff was working on a renovation project in one of defendant's buildings. While standing on a ladder, a metal grating became detached from the ceiling, striking the plaintiff and knocking him off the ladder. The Court denied summary judgment to the plaintiff under section 240(1), stating there were questions of fact as to whether the grating was required to be secured by a device enumerated within the statute, as per Narducci, 96 NY2d 259. NOTE: No mention was made in this decision as to whether plaintiff argued he was entitled to judgment on the basis that the ladder was inadequate to prevent his fall after being struck, as was done in the Raffo case at page 11. The statute requires adequate safety devices. There is no doubt that the ladder alone failed to protect the plaintiff from traversing the elevation differential and striking the floor below. The defense argument to this would be that the ladder was adequate and properly placed and that there was some other event, i.e., the grate falling, which caused the accident. But, the plaintiff could counter that there will always be some event which precipitates the need for a safety device and that a precipitating factor cannot be deemed the sole cause of the accident. See Stolt v. General Foods, 81 NY2d 918. The defendant’s reply to this is that the plaintiff’s task exposed him to the danger of falling from a height and that he was supplied with a ladder to protect himself from this danger, which was adequate for the danger he was exposed to. The ladder adequately fulfilled its objective; it was the grate that caused the fall and there was nothing foreseeable about plaintiff’s task that created an elevated-related risk posed by the grate falling and, therefore, this was not the type of danger section 240(1) was intended to protect against. To this, the plaintiff would probably have to show that it was foreseeable that the grate could fall and pose a danger that he needed to be protected against. If it was foreseeable that the grate could fall and cause harm, then the grate needed to be secured, something the Court held the Record on Appeal did not resolve as a matter of law and, therefore, there existed an issue of fact. Either argument leads us to the same conclusion - the plaintiff’s motion should be denied. O’Donnell v. Buffalo-DS Associates, 67 AD3d 1421 (4th Dept. 11/13/09) Plaintiff was injured while turning the handle of a hoisting mechanism when the crank suddenly stopped, causing a dislocation of his shoulder. The Court affirmed the dismissal of plaintiff’s section 240(1) claim upon the grounds that plaintiff’s injury was not within the special hazards contemplated by the statute. “Here, plaintiff neither fell from a height nor was struck by an improperly hoisted or inadequately secured object.” “The mere fact that the force of gravity acted upon the hoisting mechanism is insufficient to establish a valid Labor Law section 240(1) claim inasmuch as plaintiff’s injury did not result from an elevation-related risk as contemplated within the statute.” NOTE: This decision predates the Court of Appeals ruling in Runner v. New York Stock Exchange. Runner sustained an injury caused directly by the “safety device” used to lower materials. I believe a very strong argument can be made that the reasoning used in O’Donnell is no longer valid. Harinarain v. Walker, 73 AD3d 701 (2nd Dept. 05/04/10) Plaintiff and his co-workers were demolishing a fire damaged roof of a building by cutting up pieces of roof-ing and plywood and dropping them through a hole in the roof to the third floor of the building for removal. Plaintiff was retrieving an extension cord on the third floor when he was struck by plywood that was either thrown into or fell from the hole in the roof. Summary judgment on the section 240(1) claim was denied since plaintiff did not prove as a matter of law that the plywood needed to be secured, as opposed to being

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deliberately thrown into the hole, in which case section 240(1) would not apply. See, Roberts v. GE, 97 NY2d 737. Cardenas v. One State Street, LLC, LLC, 68 AD3d 436 (1st Dept. 12/03/09) Plaintiff suffered an injury when he pried from a wall an 80 pound, 3’ x 5’ x 1’ deep electrical panel which was located six feet above ground level. Because he was not supplied with any hoists or other safety devices to safely lower the electrical panel box, the Court held that the defendants violated section 240(1) of the Labor Law and granted plaintiff summary judgment. The Court found questions of fact with respect to the section 241(6) cause of action premised upon 12 NYCRR 23-3.3(c), which requires a person to detect hazards resulting from a weakened or deteriorated wall during hand demolition operations. The record did not provide enough information to determine if the work being performed amounted to hand demolition and whether the violation was a proximate cause of the injury. Salvagno v. Spano & Co., Inc., 67 AD3d 986 (2nd Dept. 11/24/09) Plaintiff was injured while he was installing boards to the underside of a deck. At the same time, a co-worker placed a ladder on top of plywood over the joists of the deck just above where plaintiff was working. The ladder kicked out and the co-worker fell while still holding onto a circular saw with its blade spinning. The plaintiff raised his hands to protect his head from being hit by the blades, resulting in the severing of two fingers. Although the plaintiff did not come directly into contact with the co-worker or the ladder, the Court granted plaintiff summary judgment on his section 240(1) case, finding that the facts set forth a prima facie case and defendant’s opposition was insufficient to defeat judgment. Kaminski v. 53rd Street and Madison Tower Development, LLC, ____ AD3d ____ (1st Dept. 02/23/10) Plaintiff, a demolition worker, was injured when a portion of an exterior wall collapsed onto him as he was clearing debris near the stairway of the eighth floor. The records did not reveal the cause of the wall’s collapse. Since the collapse of a wall is not an elevation-related hazard, plaintiff’s section 240(1) claim was dismissed. There did exist a question of fact as to whether 12 NYCRR 23-3.3(b)(2) was violated. Minchala v. Port Authority of NY and NJ, 67 AD3d 978 (2nd Dept. 11/24/09) The Court affirmed summary judgment to the plaintiff on the section 240(1) claim, finding that the type of work he was performing was ancillary to ongoing construction and that the cement barrier, which fell approximately seven feet from an unsecured position on a forklift, presented a elevation-related risk.

B. Injuries Occasioned by Extraordinary Elevation-Related Hazards vs. Typical Hazards on any Construction Site

O’Donnell v. Buffalo-DS Associates, 67 AD3d 1421 (4th Dept. 11/13/09) Plaintiff was injured while turning the handle of a hoisting mechanism and the crank suddenly stopped, causing a dislocation of his shoulder. The Court affirmed the dismissal of plaintiff’s section 240(1) claim upon the grounds that plaintiff’s injury was not within the special hazards contemplated by the statute. “Here, plaintiff neither fell from a height nor was struck by an improperly hoisted or inadequately secured object.” “The mere fact that the force of gravity acted upon the hoisting mechanism is insufficient to establish a valid Labor Law section 240(1) claim, inasmuch as plaintiff’s injury did not result from an elevation-related risk as contemplated within the statute.” NOTE: This decision predates the Court of Appeals ruling in Runner v. New York Stock Exchange. Runner sustained an injury caused directly by the “safety device” used to lower materials. I believe a very strong argument can be made that the reasoning used in O’Donnell is no longer valid. Keane v. Chelsea Piers,L.P., ____ AD3d ____ (1st Dept. 03/30/10) Plaintiff was working under a pier on a floating stage on which he was kneeling when the action of waves caused the platform to suddenly drop, resulting in a board he was sawing falling on him. The Court held that the injuries caused by the board falling came within the scope of section 240(1) because “the swing in

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elevation of the stage due to tides and waves was understood,” requiring protective devices to prevent the board from falling. However, the Court made a distinction disallowing recovery for injuries caused “by the wave lifting him up and knocking him against the bottom of the pier” he was working on. Lupo v. Pro Foods, ____ AD3d ____ (1st Dept. 12/22/09) The plaintiff was asked to retrieve a lighting fixture on a construction site. He was injured when he accidentally fell into a hole or ramp that was partially covered by a polyethylene sheet placed over recently poured concrete. The Court dismissed the section 240(1) claim, since plaintiff acknowledged he did not need to walk over the polyethylene to reach the stairs he needed to climb. There were alternative paths he could have taken. Therefore, the plaintiff's assigned task, climbing the stairs and retrieving the lighting fixture, did not require him to walk in the vicinity of the hole and, therefore, section 240(1) imposed no obligation to provide safety devices against this type of danger. Wilinski v. 334 East 92nd Housing Development Fund Corp., ____ AD3d ____ (1st Dept. 03/23/10) Plaintiff’s section 240(1) case was dismissed upon the authority of Misseritti v. Mark IV, 86 NY2d 487 (injury caused by typical hazards on construction site) since two pipes which fell on him following the removal of a floor and ceiling during a demolition job did not amount to the ultra-hazardous activity associated with the dangers presented by gravity. Settimo v. City of New York, ____ AD3d ____ (2nd Dept. 10/06/09) Without discussing the details surrounding the plaintiff's accident, the Court dismissed plaintiff's complaint, concluding there was no elevation-related hazard to support a section 240(1) claim and that the Industrial Code rule cited was not applicable to the facts. C. Falls from Ladders Picano v. Rockefeller Center, 889 NYS2d 579 (1st Dept. 12/3/09) Defendant claimed that the ladder plaintiff fell from was not defective and that the plaintiff was negligent in attempting to descend the ladder with both hands full of materials. Both of these defenses were rejected as to the section 240(1) claim, since there was no dispute that the ladder suddenly shifted and the plaintiff had no one securing the ladder, nor was he given any other safety devices to prevent the accident. Ferris v. Benbow Chemical Packaging Inc., ____ AD3d ____ (4th Dept. 06/11/10) The Court affirmed summary judgment to the plaintiff for his injuries sustained when the A-frame ladder he was on began to slide until it hit a seam in the concrete floor, causing an abrupt stop which, in turn, broke the rung of the ladder plaintiff was on, causing him to fall. The Court held this presented a prima facie case and the fact that the plaintiff was using the A-frame ladder in a closed position leaned up against the tank he was working on could not be held to be the sole cause of the accident and it was, therefore, simply comparative negligence, which is not a defense. 1. Improper Placement or Unsecured Ladders Riffo-Velozo v. Village of Scarsdale, 68 AD3d 839 (2nd Dept. 12/08/09) Plaintiff was injured while he was installing garage doors. He leaned an extension ladder against a newly installed door and climbed to install a metal arm connected to the electric garage door opener. While on the ladder, the garage door started to lift open, tipping the ladder over and causing him to fall. The Court granted the plaintiff summary judgment on his section 240(1) claim, stating that while the ladder was a safety device, it did not prevent him from falling and, thus, its core objective was not met, citing Gordon, 82 NY2d 555. The fact that the garage door opener began to lift while plaintiff was working was “not of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve the defendant of liability. deSousa v. Brown, 280 AD2d 447.

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Chacon-Chavez v. City of Rochester, ____ AD3d ____ (4th Dept. 04/30/10) Plaintiff was injured when the ladder he was on slipped and caused him to fall. The Court noted that the statute requires not only that safety devices be provided, but also that they must be properly placed and operated. Since the ladder was not secured to the roof, it was not in compliance with the statutory requirement. Therefore, the Court rejected defendant’s contentions that plaintiff was the sole cause of the accident. Deshields v. Carey, ____ AD3d ____ (3rd Dept. 01/21/10) Plaintiff brought claims under section 240(1) and 241(6) for injuries sustained when the extension ladder he was on fell to the ground with him on it. The Court reversed the granting of summary judgment to the defendants. Defendants’ claim that the cause of the ladder falling was the plaintiff's failure to properly secure the ladder hooks, resulting in the ladder collapsing, was not conclusively supported by the proof. Upon reviewing the proof in the record, the Court concluded that the ladder either slipped or collapsed or that both events occurred. Since it could not be determined as a matter of law on the motion whether the accident happened because plaintiff failed to secure the hooks or even that the ladder collapsed, as opposed to the legs kicking out on the wet surface, the motion should have been denied. Similar issues existed on the section 241(6) claim premised upon 12 NYCRR 23-1.21(b)(4)(iv), which requires ladders to be held in place by mechanical devices or a person, and whether 12 NYCRR 23-1.21(d)(2), which requires "automatic positive acting locks," could also be determined by a jury as having been violated and a proximate cause. Preneta v. North Castle Inc., 65 AD3d 1027 (2nd Dept. 09/08/09) The plaintiff was painting the underside of an overhang of the roof to a house while standing on a closed A-frame ladder which was leaning against the side of the house. The ladder slid out, causing plaintiff to fall. The Court affirmed judgment as a matter of law under CPLR 4401, concluding the only reasonable view of the evidence is that the defendant failed to provide plaintiff with proper protection. Harrison v. VRH Construction Corp., ____ AD3d ____ (1st Dept. 04/22/10) The plaintiff was injured when the ladder upon which he was working inexplicably “tilted” and caused her to fall. The Court granted plaintiff summary judgment, stating her allegations made out a prima facie case which defendants failed to refute. D. Falls Involving Trucks and Other Vehicles Fontaine v. Juniper Associates, 67 AD3d 608 (1st Dept. 11/24/09) The Court granted plaintiff summary judgment on his section 240(1) claim for injuries he sustained while unloading lumber from a flatbed trailer. The only description in the decision was that "the lumber, stacked at heights above plaintiff's head, had been piled inches from the edge of the flatbed." The Court reasoned that the injuries were caused, at least in part, by the defendant's failure to provide proper protection, presumably meaning the proper securing of the lumber. On the section 241(6) claim, there was held to be a question of fact as to whether the lumber was so placed near the edge as to endanger the plaintiff, in violation of 12 NYCRR 23-2.1(a)(2). Intelisano v. Sam Greco Construction Inc., 68 AD3d 1321 (3d Dept. 12/10/09) Plaintiff was ordered to unload bundles of insulation from a flatbed trailer. No safety devices were provided, resulting in plaintiff standing on the truck’s spare tire where he could grab the top of the shrink wrap bundle of insulation with both hands and pull himself up to the top of the 10-foot high bundles stacked upon the 4-foot high flatbed trailer. As plaintiff was attempting to pull himself up, he lost his grip and fell. Unloading of trucks is not the kind of elevation-related hazard contemplated by the statute, but it will apply where there is some risk enhancing circumstances which implicate the protection of the statute (Berg v. Albany Ladder Co., 40 AD3d 1282, Affd. 10 NY3d 902). Such was the case here, entitling plaintiff to summary judgment.

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E. Permanent Stairways and Other Permanent Structures Kindlon v. Schoharie Central School District, 66 AD3d 1200 (3rd Dept. 10/22/09) Plaintiff, a roofer, was injured when the roof he had been walking upon, which had the rubber roofing and insulation material removed, suddenly gave way, causing him to fall ten feet to the floor of the room below. The Court affirmed the dismissal of the claim against the construction manager, despite the deposition testimony of the superintendent for the project who stated he had the authority to stop or change unsafe work conditions that he observed. The Court pointed to other testimony of the superintendent, where he stated that the means by which he would do so would be to contact the prime contractor for the work at issue. “Thus, the only way for Bovis to correct safety violations was to inform the prime contractor, who would then address the problem; Bovis could not itself direct or control safety matters or the work which could lead to injury.” The Court granted plaintiff summary judgment, stating that “the collapse of the work site itself, even if it is part of the permanent structure, will constitute a prima facie violation of the statute, especially if the structure being worked upon is acting as the “functional equivalent of a scaffold.” Citing several cases. The Court also held that “plaintiff was not required to prove what safety devices would have prevented the accident.” Pope v. Safety and Quality Plus, Inc., ____ AD3d ____ (2nd Dept. 06/15/10) Defendants were granted summary judgment on plaintiff’s section 240(1) and 241(6) claims under facts where he accidentally stepped off the concrete basement section of the building which was raised several feet from a lower level. The basis for the Court’s conclusion on the section 240(1) claim was that the concrete floor the plaintiff stepped off of was a normal appurtenance to the building and was not designed as a safety device to protect the injured plaintiff from elevation-related risks. The section 241(6) claim was dismissed since the Industrial Code rules cited, 23-1.7(b)(1) and 23-1.7(e)(2), did not apply because this was not a “hazardous opening and plaintiff did not trip or slip off the concrete platform.” Grabowski v. ConEd., ____ AD3d ____ (2nd Dept. 04/20/10) The Court dismissed plaintiff's section 240(1) claim, concluding it did not apply to plaintiff who was injured when attempting to enter a construction trailer through a doorway two or three feet off the ground. A bench was used as a step, which tipped as plaintiff was on it. The Court concluded this step constituted a passageway. Presumably, the Court felt the bench should be treated not as a safety device, but as a stairway.

F. Elevators II. WHAT TYPE OF WORK DOES §240 COVER? A. Demolition and Salvage Work B. Repair Work vs. Routine Maintenance or Manufacturing Davis v. Wind-Sun Construction, Inc.: AD3d (4th Dept. 02/11/10) The issue in this case involved whether plaintiff was performing construction work or activities more aligned with fabrication/manufacturing work. Defendant had a contract to construct a pedestrian bridge at a site in western New York. Defendant subcontracted with plaintiff’s employer to “fabricate” the steel bridge components. Plaintiff, who was employed by the fabricating subcontractor, was injured in his employer’s warehouse while moving some of the components. This, the Court held, was not construction type work. Santiago v. Fred-Doug 117 LLC, ____ AD3d ____ (1st Dept. 12/17/09) The Court held there were issues of fact as to whether or not the plaintiff was performing routine maintenance work or repair work. The store manager claimed he had called plaintiff's employer to have the air conditioning system fixed. The service manager for the employer stated plaintiff was sent to complete maintenance work that had been started three days earlier. The work invoice also indicated plaintiff was

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performing maintenance work. Further, the Court also found an issue of fact as to whether the plaintiff's actions were the sole cause of the accident because plaintiff claimed the store manager bumped the ladder, causing him to fall, while the store manager said the plaintiff leaned the ladder against a wall, resulting in it slipping. Monaghan v. 540 Investment Land Co., 66 AD3d 605 (1st Dept. 10/29/09) The plaintiff's fall from a ladder while engaged in removing a ballast from a fluorescent light fixture was deemed to be routine maintenance work outside the scope of section 240(1). Owens v. City of New York, ____ AD3d ____ (2nd Dept. 04/13/10) The Court ruled that the plaintiff was performing maintenance work and not one of the enumerated activities under section 240(1) when he fell from a ladder while "performing work on a door's slide bolt locking mechanism.” Fadil Radoncic v. Independence Garden Owners Corp., 67 AD3d 981 (2nd Dept. 11/24/09) The Court granted defendant’s summary judgment motion dismissing the labor law claims upon a determination that plaintiff was merely cutting trees, which constituted routine maintenance, an activity outside the scope of the labor law.

C. Alteration Work Belding v. Verizon, 65 AD3d 414 (1st Dept. 08/04/09) Plaintiff’s employer was a subcontractor on a project to reconstruct the main entrance on a building, including installing additional security measures. Plaintiff’s work involved the installation of shatterproof film to windows in the front and rear lobbies of the building. The film is applied by cutting the film with a box cutter, wetting the surface and then sticking it to the glass, working the excess water out with a squeegee. This work was conducted in one day in April of 2004. The architect on the project required them to come back and readjust a small section of the glass, which was done on May 25, 2004, at which time plaintiff was injured. The majority determined that the work plaintiff was performing was part of the overall capital improvement, and even though on the day of the accident plaintiff was performing minimal changes to the previous work, it was still part of the overall project and thus a protected activity under section 240(1). The dissent traced the history of several Court of Appeals decisions on the issue of what is alteration-type work and viewed this accident scenario as falling outside the scope of the statute, believing plaintiff’s work did not affect a significant physical change to the building as required under Joblon, 91 NY2d 457. NOTE: This case exemplifies how a straightforward set of facts can give rise to dramatically opposing points of view. The majority looked at the overall project being performed, which no one seems to question, and found that it constituted a significant physical change to the building. Part of the project included placing the bomb-proof film, an aspect of the work which was subcontracted to plaintiff’s employer. The plaintiff was performing this work under the direction of the project’s architect when the injury occurred. Although at the instant of the injury, plaintiff was inspecting and putting the finishing touches on what he had altered, he had done heavier alteration work on earlier days at the same job site and on the same project. He was a member of a team that undertook an enumerated activity under the construction contract, and it is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts even while performing duties ancillary to those acts. Preneta v. North Castle Inc., 100 NY2d 878 (page 882). The dissent, in great detail, reviewed the elements of Joblon v. Solow, Cox v. International Paper, 234 AD2d 757, Martinez v. City of New York, 93 NY2d 322, and Prats v. Port Authority. They view Prats as setting forth a definitive list of elements (each one of which must be met) before any aspect of work can be considered alteration. “Accordingly, under Prats, ‘whether plaintiff was involved in a protected activity under the statute depends on several factors, including whether plaintiff was employed by a company that was carrying out a construction or alteration project, whether plaintiff’s work was ongoing and

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contemporaneous with that work, whether plaintiff was involved in performing alteration or construction work and whether plaintiff’s work was part of a separate phase easily distinguishable from the construction and alteration work,’” citing to 1B NY PJI 3d 2:217, at 1165 [2009]. In the end, the two different points of view reflect a more fundamental issue: Whether the statute is to be construed as liberally as necessary to accomplish the intention of the legislature or whether it is confined to only those situations obviously recognizable. LaGiudice v. Sleepy's Inc., 67 AD3d 969 (2nd Dept. 11/24/09) Plaintiff alleged that the step-ladder he was descending suddenly shifted and caused him to fall because the rug it was positioned on shifted. After determining that the work plaintiff was performing - installing exit signs - constituted alteration work, the Court granted plaintiff summary judgment. Andrews v. Northwest Auto Mall: 67 AD3d 1466 (4th Dept. 11/20/09) Plaintiff was injured in a fall from a defective ladder while installing a security system in a building owned by defendants. The Court held these facts constitute a prima facie section 240(1) case and granted judgment since defendant failed to raise a legitimate issue of fact.

D. Painting

E. Cleaning Work Parraguirre v. 27th Street Holding, ____ AD3d ____ (1st Dept. 3/30/10) Plaintiff was injured while transporting dust filters from the top structure of a cement mixing plant’s roof o a ground level where they were to be cleaned. The Court rejected the contention he was performing routine maintenance and granted summary judgment on the section 240(1) claim. F. Pointing Nothing new or novel in 2009-2010. III. WORK ASSOCIATED WITH, OR AN INTEGRAL PART OF, A COVERED ACTIVITY Martinez v. City of New York, 73 AD3d 993 (2d Dept. 05/18/10) Plaintiff’s section 240 and 241(6) claims were dismissed upon the finding that he was not employed in the course of construction, excavation, demolition, etc. He was a maintenance man for a company hired by one of the defendants to operate, monitor and maintain a gas recovery facility at the Fresh Kills landfill in Staten Island. Plaintiff was asked to shut off one of the gas mains so that one of the defendants could begin its work renovating the facility. The Court determined that since none of the covered activities had yet to begin, plaintiff’s task was not part of an already ongoing project. Moreover, he was not employed to perform construction, excavation, demolition, etc. Minchala v. Port Authority of NY and NJ, 67 AD3d 978 (2nd Dept. 11/24/09) The Court affirmed summary judgment to the plaintiff on the section 240(1) claim finding that the type of work he was performing was ancillary to ongoing construction and that the cement barrier which fell approximately seven feet from an unsecured position on a forklift presented an elevation-related risk. Belding v. Verizon, 65 AD3d 414 (1st Dept. 08/04/09) Plaintiff’s employer was a subcontractor on a project to reconstruct the main entrance on a building, including installing additional security measures. Plaintiff’s work involved the installation of shatterproof film to windows in the front and rear lobbies of the building. The film is applied by cutting the film with a box cutter, wetting the surface and then sticking it to the glass, working the excess water out with a squeegee. This work was conducted in one day in April of 2004. The architect on the project required them to come back and readjust a small section of the glass, which was done on May 25, 2004, at which time plaintiff was injured. The majority determined that the work plaintiff was performing was part of the overall capital

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improvement, and even though on the day of the accident plaintiff was performing minimal changes to the previous work, it was still part of the overall project and thus a protected activity under section 240(1). The dissent traced the history of several Court of Appeals decisions on the issue of what is alteration-type work and viewed this accident scenario as falling outside the scope of the statute, believing plaintiff’s work did not affect a significant physical change to the building as required under Joblon, 91 NY2d 457. NOTE: This case exemplifies how a straightforward set of facts can give rise to dramatically opposing points of view. The majority looked at the overall project being performed, which no one seems to question, and found that it constituted a significant physical change to the building. Part of the project included placing the bomb-proof film, an aspect of the work which was subcontracted to plaintiff’s employer. The plaintiff was performing this work under the direction of the project’s architect when the injury occurred. Although at the instant of the injury, plaintiff was inspecting and putting the finishing touches on what he had altered, he had done heavier alteration work on earlier days at the same job site and on the same project. He was a member of a team that undertook an enumerated activity under the construction contract, and it is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work. The intent of the statute was to protect workers employed in the enumerated acts even while performing duties ancillary to those acts. Prats v. Port Authority, 100 NY2d 878 (page 882). The dissent, in great detail, reviewed the elements of Joblon v. Solow, Cox v. International Paper, 234 AD2d 757, Martinez v. City of New York, 93 NY2d 322, and Prats v. Port Authority. They view Prats as setting forth a definitive list of elements (each one of which must be met) before any aspect of work can be considered alteration. “Accordingly, under Prats, ‘whether plaintiff was involved in a protected activity under the statute depends on several factors, including whether plaintiff was employed by a company that was carrying out a construction or alteration project, whether plaintiff’s work was ongoing and contemporaneous with that work, whether plaintiff was involved in performing alteration or construction work and whether plaintiff’s work was part of a separate phase easily distinguishable from the construction and alteration work,’” citing to 1B NY PJI 3d 2:217, at 1165 [2009]. In the end, the two different points of view reflect a more fundamental issue: Whether the statute is to be construed as liberally as necessary to accomplish the intention of the legislature or whether it is confined to only those situations obviously recognizable. IV. BUILDING OR STRUCTURE Wong v. City of New York, 65 AD3d 1000 (2d Dept. 09/08/09) The plaintiff was injured when he fell from a ramp near the cargo door of an airplane owned by his employer, American Airlines. He brought suit against the City of New York as the owner of the land where the accident occurred. The Court held that section 240(1) did apply to the airplane since it is a structure. Also, the fact that the airplane was not owned by the City does not relieve it of liability, citing to Sanatass, 10 NY3d 333. Enos v. Werlatone, ____ AD3d ____ (2nd Dept. 12/01/09) The Court dismissed plaintiff's section 240 and 241(6) causes of action as not being within the scope of work addressed by these statutes. Plaintiff was injured when he was struck by a tree that fell while several other trees were being removed from the defendant's premises. Since there was no evidence that the tree removal was part of a larger construction project, the plaintiff, therefore, was not performing work upon a building or structure. V. THE CLASS OF PEOPLE COVERED UNDER §240 Grove v. Cornell, ____ AD3d ____ (3rd Dept. 04/21/10) In this 3:2 decision, the plaintiff’s section 240(1) case was dismissed under circumstances where he fell some 30 feet from a manlift. The lift was surrounded on three sides by a closed rail and the third side had a swinging gate designed to automatically close when not in use. Plaintiff also had a safety harness and lanyard

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on, but it was not attached. The majority concluded that the lanyard was adequate and operable; therefore, it was irrelevant whether the gate was functioning automatically, as defendant was not required to furnish “additional redundant safety devices,” citing to Albert, 35 AD3d 1115. Moreover, the plaintiff’s negligence was deemed, as a matter of law, the sole proximate cause of his injuries. The dissent focused upon the defective condition of the gate, stating that it should be a jury question as to whether the gate was defective. “Plaintiff was not aware of the defect and he fell through the opening created by the defect.” This, the dissent believed, amounted to a violation of section 240(1) and, therefore, plaintiff’s acts cannot be the sole cause of the accident. NOTE: This case will undoubtedly be cited for the proposition that a defendant is not required to furnish redundant safety devices, but it is more accurate to state that a defendant is not required to furnish redundant safety devices under the circumstances similar to those presented in Grove v. Cornell. There are additional facts in this case which shed more light upon the reasoning of the majority. For instance, the plaintiff, who was wearing his safety harness and lanyard, was told by his co-worker that his lanyard was not attached to the basket and reminded him to do so. This brings to mind the old Smith v. Hooker Chemical Co. ruling, which held that a recalcitrant worker is one who is affirmatively told to use a safety device, and refuses to do so! As for the gate, while the spring-loaded hinge was not working automatically, the gate was still manually operable and could be closed and locked by hand, so that “if plaintiff had either attached his lanyard as required or closed and latched the gate manually, the provided safety devices would have prevented him from falling out of the basket.” What will create problems is the fact that the decision goes on to say, “Moreover, as there was no evidence that the lanyard was anything other than an adequate, available and operable safety device that would have prevented any fall by plaintiff, it ultimately is irrelevant whether the gate was functioning automatically, as defendant was not required to furnish an additional redundant safety device.” Fallon v. Flach, ____ AD3d ____ (3rd Dept. 03/11/10) A volunteer fire company asked for volunteers to erect plastic sheeting and heaters in a warehouse owned by the defendants, so as to protect fire engines temporarily stored in the facility. Plaintiff was injured when the ladder he was on collapsed. The Court dismissed plaintiff's section 240(1) claim against the defendants on the basis that the labor law does not apply to volunteers. Stringer v. Musacchia, 11 NY3d 212. Moreover, there was no evidence defendant contracted for the work; the work did not benefit the defendant; the defendant did not agree to compensate plaintiff for his services; did not request the work to be performed; and was unaware the plaintiff was on the property. Therefore, there were no mutual duties or obligations between the parties establishing any of the hallmarks of an employment relationship. Martinez v. City of New York, 73 AD3d 993 (2d Dept. 05/18/10) Plaintiff’s section 240 and 241(6) claims were dismissed upon the finding that he was not employed in the course of construction, excavation, demolition, etc. He was a maintenance man for a company hired by one of the defendants to operate, monitor and maintain a gas recovery facility at the Fresh Kills landfill in Staten Island. Plaintiff was asked to shut off one of the gas mains so that one of the defendants could begin its work renovating the facility. The Court determined that since none of the covered activities had yet to begin, plaintiff’s task was not part of an already ongoing project. Moreover, he was not employed to perform construction, excavation, demolition, etc. VI. WHO IS RESPONSIBLE UNDER §240 – CONTRACTORS AND OWNERS AND THEIR AGENTS McKee v. Great Atlantic and Pacific TCO., 73 AD3d 872 (2nd Dept. 06/30/10) The plaintiff sustained an injury while using a masonry saw to cut a metal stud which he was securing to the ground with his foot. The stud kicked out from under his foot, causing him to fall and sustain injury to his back. Since this accident arose not out of a defect or dangerous condition of the premises, but the manner or method of the work plaintiff was performing, plaintiff’s section 200 cause of action was dismissed against the defendant as owner of the property. Plaintiff’s section 241(6) claim was also dismissed since plaintiff did not cite an Industrial Code Rule which was applicable to the facts of this case.

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Scaparo v. Village of Ilion, 13 NY3d 869 (12/01/09) The Court of Appeals sharpened its definition of “owner” for purposes of the Labor Law in this section 241(6) decision. Plaintiffs were injured when the trench they were in collapsed. The key to understanding the Court's ruling lies in the relationships between the parties with respect to the construction project. Co-defendant, Church of St. Mary, had newly constructed a cemetery chapel. The defendant Village was the owner of the sewer lateral to which the church's new chapel was to be connected. In order to complete the connection, the lateral ran from a street intersection in the Village, across the property owned by Herkimer County Industrial Development Agency (IDA), then onto the church's property. The accident occurred on the portion of the lateral that was located on the IDA’s property. The Court of Appeals affirmed the dismissal of the complaint against the IDA under the rule that "some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest," (See Abbatiello, 3 NY3d 46) is necessary to be deemed an owner under the Labor Law. Here, the IDA did not contract for the work, had no choice but to allow the Village to enter the property pursuant to a right of way, and did not grant an easement to the Village or other property interest creating a right of way. The Court also affirmed the dismissal of the complaint against the church. Although an owner does not necessarily have to have title to the property, the owner must have "an interest in the property and [who] fulfilled the role of owner by contracting to have work performed for his [or her] benefit.” See Copertino v. Ward, 100 AD2d 565. Copertino was the homeowner installing a sewer lateral directly from his property, under the street to the sewer main. In that case, however, the homeowner had an easement under the street to the main sewer line. Here, the church had no easement, title or other property interest on the lands owned by the IDA. NOTE: Although this case deals solely with section 241(6), the term “owner” for purposes of section 241(6) must be consistent with both sections 240(1) and 241-a under the doctrine of in pari material. See Allen v. Cloutier, 44 NY2d 290. This case makes it clear that a utility or other easement holder performing work across an owner's property does not make the owner of the property where the accident occurred liable as an owner under the Labor Law unless the owner has some connection to the work, such as hiring the contractor, obtaining a property right in the structure or granting an easement or right of way. Astoria Generating Co. v. Elliott Turbomachinery Co., 13 NY3d 382 (11/23/09) In this 5:2 decision, the Court of Appeals reversed the Appellate Division's grant of summary judgment to the plaintiff upon his section 240(1) claim. The issue centered around whether the barge upon which the accident occurred was a vessel under the Longshore & Harbor Workers' Compensation Act (LHWCA) and whether 33 USC §905[b] specifically pre-empts all but negligence claims against vessel owners. Plaintiff was employed by a company that was performing an overhaul of the turbine engines which powered electrical generating turbines mounted on four large barges. The barges were stationed at a facility in the Gowanus Canal, which is a navigable waterway. Plaintiff fell from a ladder while working on the generator and collected compensation under the LHWCA and also brought a Labor Law action against the vessel's owner. The majority determined that the barge did constitute a vessel under Maritime Law. Although the LHWCA does not define vessel, the U.S. Supreme Court has held that the statutory definition of vessel in 1 USC § 3 is applicable and includes every description of water-craft capable of being used as a means of transportation on water. The LHWCA, 33 USC § 905(b), states, in part, that "in the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person . . . may bring an action against such vessel and the employer shall not be liable to the vessel for such damages . . . the remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” This, according to the majority opinion, evidences Congress’ clear intention to pre-empt state law because 905(b) specifically states that only negligence actions can be brought against the vessel's owner and it shall be the exclusive remedy in addition to LHWCA. Sections 240(1) and 241(6) are "strict liability claims," which are not permitted under section 905(b). Therefore, the Labor Law claims must be dismissed. Judge Ciparick, writing the dissenting opinion in which Judge Lippman concurred, took the position that section 905(b) comes into play only if the plaintiff has a negligence case against the vessel

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owner. Under circumstances such as this case, there is no negligence and, therefore, no remedy provided by section 905(b), resulting in no "exclusive remedy" that would pre-empt state law. According to the dissent, section 905(b) does not create a new statutory negligence cause of action or Maritime tort; it merely preserves an injured employee’s right to recover for the vessel’s negligence under existing law. Because section 905(b) does not apply, its language cannot be used to justify pre-emption. NOTE: In 2000, the Court of Appeals decided Cammon v. City of New York, which held that the New York Labor Law is not pre-empted by section 905(b). The Astoria decision distinguished Cammon by pointing out that Cammon involved an injured worker receiving benefits under LHWCA and a defendant landowner. Astoria was not attempting to bring a claim against a landowner, but the owner of the vessel, which clearly implicates section 905(b). Thus, the Astoria decision does not overrule Cammon; it simply holds that it was not applicable to the facts of this case. Kindlon v. Schoharie Central School District, 66 AD3d 1200 (3rd Dept. 10/22/09) Plaintiff, a roofer, was injured when the roof he had been walking upon, which had the rubber roofing and insulation material removed, suddenly gave way, causing him to fall ten feet to the floor of the room below. The Court affirmed the dismissal of the claim against the construction manager, despite the deposition testimony of the superintendent for the project who stated he had the authority to stop or change unsafe work conditions that he observed. The Court pointed to other testimony of the superintendent, where he stated that the means by which he would do so would be to contact the prime contractor for the work at issue. “Thus, the only way for Bovis to correct safety violations was to inform the prime contractor, who would then address the problem; Bovis could not itself direct or control safety matters or the work which could lead to injury.” The Court granted plaintiff summary judgment, stating that “the collapse of the work site itself, even if it is part of the permanent structure, will constitute a prima facie violation of the statute, especially if the structure being worked upon is acting as the “functional equivalent of a scaffold.” Citing several cases. The Court also held that “plaintiff was not required to prove what safety devices would have prevented the accident.” Barrios v. City of New York, ____ AD3d ____ (07/13/10) Defendant was denied summary judgment upon its argument that it was not a general contractor or an agent of the owner and was acting solely as a “construction manager.” “The critical question is whether the construction manager was delegated supervisory control and authority over the work being done when the plaintiff was injured.” In this regard, defendant’s contract required it to inspect the site, report safety issues to the resident engineer, develop a quality control plan, meet with contractors and discuss their individually developed safety plans and, in fact, defendant did hire safety officers who had the authority to bring safety concerns to the attention of the individual contractor’s foreman. Wheeler v. Citizens Telecommunications, ____ AD3d ____ (3rd Dept. 04/20/10) Plaintiff was injured when a defective utility pole fell over. The pole was owned by third-party defendant NYSEG and the accident occurred when the plaintiff was removing the defendant’s telecommunication wires from the defective pole. Plaintiff was hired to remove these wires from the defective pole onto a new one. In addition, Time Warner Cable had also leased space for one of their TV cables which was still attached to the defective pole at the time of the accident. Since it is undisputed that Time Warner neither contracted for, nor benefitted from, plaintiff’s work, nor was Time Warner’s cable being worked upon at the time of the accident, there were insufficient facts to impose owner liability against Time Warner. Wong v. City of New York, 65 AD3d 1000 (2nd Dept. 09/08/09) The plaintiff was injured when he fell from a ramp near the cargo door of an airplane owned by his employer, American Airlines. He brought suit against the City of New York as the owner of the land where the accident occurred. The Court held that section 240(1) did apply to the airplane, since it is a structure. Also, the fact that the airplane was not owned by the City does not relieve it of liability, citing to Sanatass, 10 NY3d 333.

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Bowles v. Clean Harbors Environmental Services, ____ AD3d ____ (3rd Dept. 04/15/10) Plaintiff, an employee of the owner of an onsite chemical storage tank, was injured when he fell from a ladder while attempting to measure the air quality inside the tank. He was performing this task before the defendant was allowed to send its men inside the tank in order to clean it. Not being able to sue his employer, who owned the tank, he sued the cleaning company his employer hired to clean the tank. The Court dismissed the Labor Law claim on the basis that the contract between the plaintiff's employer and the defendant did not impose upon the defendant any obligation to provide or control safety procedures over the work the plaintiff was performing. In fact, defendant was not permitted to begin its work until after the plaintiff had performed the air quality inspection and issued a permit to the defendant to begin work. Ficano v. Franklin Stucco Supply, ____ AD3d ____ (2nd Dept. 04/27/10) The Court granted summary judgment to the defendant and dismissed all claims. Although defendant was delegated responsibility by the owner to perform work, it established with competent evidence that another entity was hired to perform work at the premises where the plaintiff sustained his injury. "An agency relationship (under the Labor Law) arises only when work is delegated to a third-party who obtains the authority to supervise and control the work being performed.” Paljevic v. 998 5th Avenue Corp., 65 AD3d 896 (1st Dept. 09/08/09) The defendant was a contractor on a project involving the renovation of 17 rooms,, The work encompassed by its contract excluded painting, but the Court concluded it was not entitled to summary judgment dismissing plaintiff’s Labor Law claims which arose from his painting activities. Since defendant’s contract provided that it maintain and supervise all safety precautions and programs in connection with its contract, and that it provide reasonable protection to prevent injury to employees on the work site, as well as to other persons who may be affected thereby, there was an issue of fact as to whether it assumed the responsibility of safety for all contractors. Rowland v. Wilmorite, 68 AD3d 1770 (4th Dept. 12/30/09) The Court affirmed dismissal of plaintiff’s section 240(1) claim against the defendant, who was alleged to be the construction manager and, therefore, an agent of the property owner. The Court concluded that the proof on the record demonstrated the owner did not delegate the authority to supervise and control plaintiff’s work through the defendant. Although plaintiff alleged discovery had not been concluded and, therefore, the motion should be denied, the Court stated that, “the record establishes that plaintiff had ample opportunity for discovery prior to the motion.” Reed v. Nea Residential, Inc., ____ AD3d ____ (4th Dept. 07/02/09) Plaintiff commenced a section 241(6) claim against defendant Design Project Coordinator for construction of a single family home owned by a husband and wife. The Court denied summary judgment to Design Project Coordinator, finding issues of fact as to whether the project coordinator was acting as an agent under the statute. Defendant becomes an agent if it was responsible for coordinating and supervising the project and if it was invested with concomitant power to enforce safety standards and to hire responsible contractors. Kilmetis v. Creative Pool & Spa, Inc., ____ AD3d ____ (2nd Dept. 06/29/10) Plaintiff fell from a scaffold while placing siding on dormers located on the roof of a garage. Suit was brought against defendant, Creative Pool & Spa, Inc., upon an allegation that it was a general contractor and was listed as such on the building permit. The Court dismissed the claim on the basis that the evidence indicated the defendant was not hired to perform work on the garage, did not have the authority to supervise the work performed on the garage and that the work permit alone was insufficient to raise a triable issue of fact. Temperino v. DRA, Inc., ____ AD3d ____ (2nd Dept. 07/13/10) The Court dismissed all Labor Law claims against DRA since there was no showing that it was a general contractor on this project, nor was there any proof that it had been given the authority to supervise and control the work giving rise to plaintiff’s injuries.

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VII. PROCEDURAL ISSUES

A. Summary Judgment Motions under §240 Gimeno v. American Signature Inc., 67 AD3d 1463 (4th Dept. 11/20/09) Plaintiff was in a lull, a forklift-like device to which a lift platform can be attached. He was wearing his har-ness and lanyard and was properly secured to the platform. The platform separated from the forklift on the lull and plaintiff fell about fifteen feet while still attached to the platform. This, the Court held, demonstrated a prima facie case for summary judgment to which the defendants failed to raise any triable issue of fact. Simply because the plaintiff had attached the platform to the lull, with nothing more, does not create a triable issue of fact. Romanczuk v. Metropolitan Insurance, ____ AD3d ____ (1st Dept. 04/27/10) Without discussing the particular facts of the case, the Court affirmed summary judgment on plaintiff’s section 240(1) claim, stating defendant’s contention that there was an issue of fact based on conflicting versions between the plaintiff and his foreman did not preclude judgment since both versions, although different, demonstrated that section 240(1) was violated. Hernandez v. 42/43 Realty, LLC, ____ AD3d ____ (1st Dept. 06/15/10) Plaintiff was granted summary judgment on her section 240(1) claim which resulted from a fall off an unstable ladder. Defendants failed to produce any legitimate issue of fact requiring a trial. Nunez v. City of New York, ____ AD3d ____ (2nd Dept. 01/12/10) There was no discussion of the facts supporting the Court’s conclusion that the plaintiff was entitled to summary judgment on the section 240(1) claim. Scheidt v. Toll Brothers, Inc., ____ AD3d ____ (2nd Dept. 02/02/10) Without a discussion of the facts, the Court affirmed summary judgment to the plaintiff on his section 240(1) claim. B. Necessary Facts to Prove a Violation or Defense under §240 Macedo v. J.D. Posillico, ____ AD3d ____ (1st Dept. 12/10/09) Plaintiff and a co-worker fell from an elevated platform. Defendants claimed that there was a question of fact as to whether the platform failed or bent prior to the fall. The Court held this to be irrelevant because there was no question that neither the plaintiff's safety devices nor the platform prevented his fall or subsequent injury. Defendant's proof - that after the accident no repairs were made to the platform and that it was secure - does not refute the eyewitness testimony that the platform bent at the time of the accident. The Court also resolved the issue of lost wages in favor of the plaintiff, who apparently was an undocumented alien. Although plaintiff had a false social security number, the proof was that defendant was not provided with this until months after the accident took place. Therefore, no false documents were used by plaintiff to secure employment and it was defendant that failed to comply with employment verification in good faith. Under Balbuena, 6 NY3d 388, plaintiff was entitled to recover lost wages. Harris v. Hueber-Breuer Construction Co., 67 AD3d 1351 (4th Dept. 11/13/09) Plaintiff claimed injury to his neck when he was descending a multi-level scaffold from the roof of a building under construction. When he arrived on one of the scaffold’s tiers, which was not fully planked over, he was injured in his attempt to prevent falling through the unplanked floor. The Court reinstated plaintiff’s section 240(1) claim, stating that his injury was proximately caused by the failure of a safety device to afford him proper protection from an elevation-related risk, despite the fact that he did not fall to the ground. There were factual issues as to whether there was a safer method of descending from the roof, which required a trial. Also the Court reinstated the section 241(6) claim premised upon 12 NYCRR 23-1.7(f) and 23-5.1(e)(1) and 23-5.3(f).

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Tapia v. Mario Genovesi & Sons, Inc., ____ AD3d ____ (2nd Dept. 04/13/10) The plaintiff fell from a makeshift scaffold when it collapsed. He built this device according to the instructions he was given by his employer. When it was finished, the employer inspected and approved it. Plaintiff was entitled to summary judgment after proving his prima facie case that the device failed. The fact that he put it together himself does not establish that he was the sole proximate cause of the accident, especially in light of these facts. The fact that he was the sole witness is also irrelevant. Ciccone v. Kendal on Hudson, ____ AD3d ____ (2nd Dept. 04/13/10) Plaintiff claims he was injured while standing on a third floor balcony, unloading wall board from a bundle of the material suspended by a crane. He alleged there was a sudden drop of the crane load, causing it to shift and strike him in the shoulder and knocking him to the floor. On his motion for summary judgment, he submitted the deposition of the crane operator who claimed there was never a sudden drop of the crane. With this, plaintiff’s own papers created a question of fact and the Court held he did not set forth a prima facie entitlement to judgment. Long v. Cellino and Barnes P.C., ____ AD3d ____ (4th Dept. 12/30/09) In this legal malpractice lawsuit, the Court found that plaintiff had established that he would have prevailed on his section 240(1) claim but for defendant’s malpractice. Defendant claims there existed an issue in the underlying section 240(1) claim concerning the other available safety devices. The Court held that the duty imposed by the statute “is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give proper protection.” Beardslee v. Cornell, ____ AD3d ____ (3rd Dept. 04/22/10) Plaintiff claimed that the ladder he was supplied was inadequate to reach his work area and he was required to climb upon the structure itself, leaving him exposed to, and unprotected from, the forces of gravity. The Court found defendant’s opposition papers created an issue of fact and summary judgment was denied. Yax v. Development Team, Inc., 67 AD3d 1003 (2nd Dept. 11/24/09) Without a detailed discussion of the facts, the Court denied plaintiff’s summary judgment on the section 240(1) claim, stating that the affidavit of the project superintendant by defendant had sufficient facts to raise a triable issue concerning the recalcitrant worker defense. The same affidavit also gave rise to an issue on plaintiff’s section 241(6) case concerning “whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.” Citing to Rizzuto v. Wenger, 91 NY2d 343. Herrnsdorf v. Bernard Janowitz Construction Corp.: 67 AD3d 640 (2nd Dept. 11/4/09) Without discussing the details of how the plaintiff was injured, the Court affirmed the denial of plaintiff’s motion for summary judgment on his section 240(1) claim, stating that he did not set forth a prima facie case to begin with and, therefore, it was not necessary to consider the opposing papers. C. Breach of the Statute Ravinov v. Popeye's Popyork, ____ AD3d ____ (2nd Dept. 12/22/09) Plaintiff was working on a renovation project in one of defendant's buildings. While standing on a ladder, a metal grating became detached from the ceiling, striking the plaintiff and knocking him off the ladder. The Court denied summary judgment to the plaintiff under section 240(1), stating there were questions of fact as to whether the grating was required to be secured by a device enumerated within the statute, as per Narducci, 96 NY2d 259. NOTE: No mention was made in this decision as to whether plaintiff argued he was entitled to judgment on the basis that the ladder was inadequate to prevent his fall after being struck, as was done in the Raffo case at page 11. The statute requires adequate safety devices. There is no doubt that the ladder alone failed to protect the plaintiff from traversing the elevation differential and striking the floor below. The defense argument to this would be that the ladder was adequate and properly placed and that there was some other event, i.e., the

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grate falling, which caused the accident. But, the plaintiff could counter that there will always be some event which precipitates the need for a safety device and that a precipitating factor cannot be deemed the sole cause of the accident. See Stolt v. General Foods, 81 NY2d 918. The defendant’s reply to this is that the plaintiff’s task exposed him to the danger of falling from a height and that he was supplied with a ladder to protect himself from this danger, which was adequate for the danger he was exposed to. The ladder adequately fulfilled its objective; it was the grate that caused the fall and there was nothing foreseeable about plaintiff’s task that created an elevated-related risk posed by the grate falling and, therefore, this was not the type of danger section 240(1) was intended to protect against. To this, the plaintiff would probably have to show that it was foreseeable that the grate could fall and pose a danger that he needed to be protected against. If it was foreseeable that the grate could fall and cause harm, then the grate needed to be secured, something the Court held the Record on Appeal did not resolve as a matter of law and, therefore, there existed an issue of fact. Either argument leads us to the same conclusion - the plaintiff’s motion should be denied. Gizowski v. State, 66 AD3d 1348 (4th Dept. 10/02/09) The Court granted summary judgment to the plaintiff, who fell from the scaffold he was working on when a portion of the ceiling he was demolishing collapsed and struck the corner of the scaffold, causing him to be thrown to the ground. Specifically, plaintiff met his burden of establishing, as a matter of law, that the injury was caused by the lack of enumerated safety devices and their proper placement, which would have prevented both the ceiling from falling on the scaffold and the plaintiff from falling off the scaffold. Zengotita v. JFK International Air Terminal, LLC, 67 AD3d 426 (1st Dept. 11/05/09) Plaintiff was granted summary judgment after demonstrating he fell from the scaffold because the scaffold moved. Defendant failed to present any evidence to support its contention that plaintiff fell because he was descending in an improper manner. Since no other safety devices were provided to prevent the scaffold from moving or to prevent the plaintiff from falling, judgment is granted as a matter of law.

D. Unwitnessed Accidents Weber v. Baccarat, Inc., ____ AD3d ____ (1st Dept. 02/16/10) The Court held plaintiff set forth a prima facie case for judgment under section 240(1) when he established that while on an A-frame ladder he heard a pop, saw the right rear leg of the ladder shift forward and separate from the top plate resulting in his fall. Defendants failed to produce any evidence creating a question of fact. Judgment is warranted despite the fact plaintiff was the sole witness to the accident. McCaffrey v. Wright & Co., ____ AD3d ____ (2nd Dept. 03/16/10) Plaintiff was granted summary judgment on his section 240(1) claim after demonstrating he fell from an unsecured ladder. “The fact that the plaintiff may have been the sole witness to the accident does not preclude the award of summary judgment in his favor.” Inga v. EBS North Hills, LLC, ____ AD3d ____ (2nd Dept. 01/05/10) Plaintiff was on an A-frame ladder positioned on top of a scaffold platform and was injured when the scaffold collapsed. The fact that the accident was unwitnessed did not preclude summary judgment for the plaintiff. VIII. PROXIMATE CAUSE Cherry v. Time Warner Inc., 66 AD3d 233 (1st Dept. 08/18/09) This case details the current state of the sole proximate cause defense, examining both sides of the issue. Plaintiff was injured when he fell from a Baker's scaffold that had railings on only two of its four sides. Both parties moved for summary judgment, with plaintiff claiming this was the only scaffold he was provided with and that he did not see any others on the day of the accident and was not given any instructions that he was only to use scaffolding with railings. Defendant claimed plaintiff was instructed not to use scaffold without railings, that there were scaffolds with railings available at all times, that plaintiff was shown how to

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install guard rails and where to find them, and that plaintiff's testimony was that he did observe scaffolding with guard rails on other floors of the building that were being worked on prior to the accident. The majority opinion pointed out recent decisions by the Court of Appeals which they acknowledge can be read as seemingly diluting the unequivocal requirement under section 240(1) that a defendant must provide adequate safety devices and, understandably, can be mistakenly read to require a duty on the worker’s part to search for safety devices on the job site. The Court went on to analyze in detail the facts in the Montgomery case. There, the Court pointed out that Montgomery, upon arriving at his work site, noted the stairs he had previously used had now been removed and he decided to use a five gallon pail, which he eventually fell from, in place of the stairs. In that case, the Court of Appeals stated that "since ladders were readily available, plaintiff's normal and logical response should have been to go get one.” In Robinson, the Court also found plaintiff to be the sole cause of the accident when it determined that the plaintiff knew where the eight foot ladders were stored and failed to go get one. But in Miro, 9 NY3d 948, the Court of Appeals held that the plaintiff’s statement that if he requested a new ladder, the defendant was pretty good at supplying a new one from the stock room, was not sufficient to satisfy defendant's obligation to provide a safety device because there was nothing in the record to demonstrate how easily a replacement ladder could have been procured. Hence, Zimmer, 65 NY2d 524, which held that “the mere presence of ladders or safety belts somewhere at the worksite does not establish proper protection" is still good law. Therefore, Zimmer requires that the defendant’s motion in the instant case be denied, as there is an issue of fact concerning where the scaffolds and guard rails were located on the day of the accident. The dissenting opinion argues that the Montgomery and Robinson cases require that the worker demonstrate that he took some action to seek out an appropriate safety device, as there is now a requirement that plaintiffs act in a normal and logical manner. The dissent further argues that Zimmer is no longer authority on these factual issues since it was decided in response to a recalcitrant worker defense and that subsequently the Court of Appeals decided the Blake case, which deals with sole proximate cause and, therefore, supersedes Zimmer. NOTE: The majority opinion points out a critical factor in this argument as to what, if anything, a plaintiff must do to search for a safety device, when the purpose of section 240(1) was to place the ultimate burden upon the defendant to supply the device. The dissent's opinion that, because the plaintiff did not look beyond his immediate work station his actions therefore constitute the sole cause of the accident, "is predicated on the assumption that the plaintiff had an obligation to search all eight floors because he had seen scaffolds with guard rails somewhere on the job site prior to the day of the accident." This, the majority held, was precisely the standard that Zimmer rejected and it is not such a standard imposed by either Montgomery or Robinson. The dissenting opinion attempts to declare the recalcitrant worker defense as being separate and apart from the sole proximate cause defense. In Pratt, the Court of Appeals explained they are one and the same. A. Recalcitrant Worker Doctrine / Blake Defense Gallagher v. New York Post, ____ NY3d ____ (Ct. of Appeals 02/11/10) In this case, the Court of Appeals tightened the reins on the recalcitrant worker doctrine. Over the years, many courts have cited to Montgomery v. Federal Express, 4 NY3d 805, and Robinson v. East Medical Center, 6 NY3d 550, which require the worker to perform some type of “search and seek” activities before he can avoid the recalcitrant worker defense. Gallagher, an ironworker, was removing a section of metal decking from the second floor of a building with a metal cutting power saw. He claimed the saw blade bound, throwing him into an opening in the floor so that he fell through to the floor below. On his motion for summary judgment, the motion court denied plaintiff’s motion, first stating on the grounds that the defendant produced deposition testimony that safety harnesses and lanyards were available for use at the project site on the day of the accident, but he could not say whether any such devices were in the area where Gallagher fell. On re-argument, the Court acknowledged it overlooked some of plaintiff’s proof and held there was no issue of fact concerning whether plaintiff had been provided with a safety device, but still denied the motion on the basis that there were additional facts concerning whether plaintiff had returned to work from a previous injury too soon.

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The Court of Appeals reversed and granted summary judgment to plaintiff, stating in Robinson, 6 NY3d 550, there was proof that an 8-foot step ladder was available in the vicinity of plaintiff’s work, he knew where to find it, and also was aware he was instructed to use it. In Montgomery, the plaintiff jumped from an elevator stuck a few feet above the floor without attempting to wait for help or call for help. The Court of Appeals distinguished the Gallagher case, stating there was no proof that plaintiff had ever been instructed to use safety harnesses and lanyards at all times; or that there were in fact available safety devices in the vicinity of plaintiff’s work area; or that plaintiff knew where the safety devices were. Since section 240(1) was violated, any facts concerning plaintiff returning to work too soon would be nothing more than comparative negligence, not a defense in this case. Pieri v. B & b Welch Associates, ____ AD3d ____ (4th Dept. 06/11/10) The issue in this case involved whether the work plaintiff was performing constituted repair work and whether the trial court should have charged the jury as to the possibility of plaintiff being the sole cause of the accident for failing to use a tripod device he had purchased for the defendant some 15 years earlier when he was an employee of theirs. Holding in favor of the plaintiff on both these issues, the Court found the work plaintiff was performing, which had been called “troubleshooting” a malfunctioning sewer pump station connected to defendant’s apartment complex, was covered under section 240(1), since plaintiff’s presence on the site was due to a breakdown in the equipment, which he was to find the cause of and repair. This type of inspection work is covered since it is neither pragmatic nor consistent with the spirit of the statute to isolate the moment of injury and ignore the general context of the work, citing to Prats v. Port Authority, 100 NY2d 878. Plaintiff’s injury was caused when he was leaning over the opening of the Pump Station Pit and acci-dentally fell into it. The tripod was a harness device which was to be used by placing the tripod over the opening and attaching the safety harness lanyard to the tripod when working on the pump station. The Court pointed out that just because a safety device may be present somewhere on the worksite, it does not satisfy the requirements of section 240(1). Moreover, defendant failed to produce evidence that 1) plaintiff had been instructed to use the tripod and harness, or, that based upon his training, prior practice and common sense, he knew or should have known to use it; 2) that the plaintiff knew he was expected to use the device; 3) that he chose for no good reason not to do so; and 4) that had he not made that choice he would not have been in-jured. Moracho v. Open Door Family Med Center, ____ AD3d ____ (1st Dept. 06/24/10) The Court reversed summary judgment in favor of the plaintiff on his section 240(1) claim for injuries he sustained when he fell through an unguarded open skylight. The Court said the record demonstrated a question of fact existed as to whether plaintiff was to tie off a safety vest; whether one was available for him; and, if so, whether he chose for no good reason not to do so. Zou v. Hai Ming Construction Corp., 74 AD3d 800 (2nd Dept. 08/25/10) The Court granted plaintiff summary judgment on his section 240(1) claim, pointing out that the defendants failed to raise any triable issue of fact in opposition. Specifically, there was no evidence that the plaintiff was provided with certain safety devices, or that such devices were readily available for his use, or that the plaintiff was specifically instructed to use such devices but chose for no good reason to disregard those instructions. Cahill, 4 NY3d 35. Gizowski v. State of New York: 66 AD3d 1348 (4th Dept. 10/02/09) The Court granted plaintiff summary judgment on his section 240(1) claim for injuries he sustained when he was knocked off a scaffold when a portion of the ceiling he was demolishing collapsed and struck the scaffold. The argument that claimant had negligently placed the scaffold in a dangerous spot after removing bracing from the ceiling that collapsed, did not amount to the sole cause of the accident. Plaintiff's actions were nothing more than contributory negligence. NOTE: This case is a good example of the importance of "painting the picture" of how the accident occurred. Did the plaintiff place a perfectly safe and adequate scaffold in a position of danger underneath the ceiling from which he had just removed the support devices? Or, did the defendant fail to provide a proper

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scaffold for the purpose of working underneath a ceiling which foreseeably could fall and strike the scaffold? Under the first version, the plaintiff could be the sole cause of the accident, since there was nothing improper about the safety equipment supplied, which included an adequate scaffold and also adequate bracing for the ceiling. At minimum, it could be determined that the accident was not caused by a failure of the safety devices, but by reason of the plaintiff's improper use of these devices. Under the second version, the plaintiff would be entitled to judgment under section 240(1) because it is the defendant's obligation to not just provide proper safety equipment, but to have it properly placed and operational. Once plaintiff establishes that the statute was violated, and that the violation was a proximate cause, then anything the plaintiff is accused of having done is nothing more than contributory negligence. It should be the goal of counsel for each of the parties to understand the "picture that needs to be painted" during discovery proceedings so as to elicit facts that will enhance the desired image. Treu v. Cappelletti, ____ AD3d ____ (2nd Dept. 03/23/10) The plaintiff was working on a ladder scaffold consisting of two extension ladders leaned up against the structure with ladder jacks supporting a plank that ran between the two ladders. One end extended about four feet past the ladder jack. When plaintiff stood on that four foot section, it tipped causing him to fall. The Court granted plaintiff summary judgment on the section 240(1) claim, stating that there was no question but that the scaffolding was insufficient to provide adequate protection from falls. Once this occurs, the plaintiff cannot be held as the sole cause of the accident. Calderon v. Walgreen Co.: AD3d (4th Dept. 04/30/10) In this 3:2 decision, the Court affirmed summary judgment on plaintiff's section 240(1) claim. Plaintiff sustained his injuries while dismantling a scaffold and, in so doing, it tipped backwards causing him to fall. Although defendant argued that the plaintiff was negligent in moving the materials to the back of the scaffold, causing it to become unstable, the majority determined that it was nothing more than comparative negligence, not a viable defense. The dissenting opinion argued that there was a question of fact as to whether the plaintiff's own actions were the sole cause of the accident in light of the defense expert's conclusions that the scaffold was safe and adequate and not the proximate cause of the accident. Kim v. Clymer Central School, ____ AD3d ____ (4th Dept. 04/30/10) Without a discussion of the facts surrounding plaintiff’s fall from a ladder, the Court denied summary judgment to plaintiff stating there were issues of fact as to whether he was the sole cause of the accident. Latchuk v. Port Authority of NY and NJ, ____ AD3d ____ (1st Dept. 03/23/10) Plaintiff was working at the George Washington Bridge and was injured by an exploding sand blasting hose. After the explosion, he stated he could not use the “spider basket” to descend to a safe level and was forced to remove his safety harness and climb down to a lower platform from which he fell, sustaining more injuries. This, according to the Court, created issues of fact as to whether plaintiff was the sole cause of the accident. IX. ADEQUACY OF THE SAFETY DEVICE Holly v. County of Chautauqua, ____ NY3d ____ (01/19/2010) The Court reversed the Fourth Department's granting of summary judgment to the plaintiff on his section 240(1) claim. The plaintiff, a mason, was injured when he either fell or jumped from his six foot high scaffold after losing his balance while lifting a 40 pound block over his head. At the Appellate Division, the Court noted that the scaffold did not have a restraint bar and concluded that he was not given the appropriate safety devices required under the statute. The Court of Appeals, without any description of the facts, reversed the Appellate Division, stating that "while we agree with the Appellate Division that there are no questions of fact regarding proximate cause, triable issues of fact do exist as to whether the scaffolding the defendant supplied provided proper protection under Labor Law section 240(1).”

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Grove v. Cornell, ____ AD3d ____ (3rd Dept. 04/21/10) In this 3:2 decision, the plaintiff’s section 240(1) case was dismissed under circumstances where he fell some 30 feet from a manlift. The lift was surrounded on three sides by a closed rail and the third side had a swinging gate designed to automatically close when not in use. Plaintiff also had a safety harness and lanyard on, but it was not attached. The majority concluded that the lanyard was adequate and operable. Therefore, it was irrelevant whether the gate was functioning automatically, as defendant was not required to furnish “additional redundant safety devices,” citing to Albert, 35 AD3d 1115. Moreover, the plaintiff’s negligence was deemed, as a matter of law, to be the sole proximate cause of his injuries. The dissent focused upon the defective condition of the gate, stating that it should be a jury question as to whether the gate was defective. “Plaintiff was not aware of the defect and he fell through the opening created by the defect.” This amounts to a violation of section 240(1) and therefore plaintiff’s acts cannot be the sole cause of the accident. NOTE: This case will undoubtedly be cited for the proposition that a defendant is not required to furnish redundant safety devices, when it is more accurate to state that a defendant is not required to furnish redundant safety devices under the circumstances similar to those presented in Grove v. Cornell. There are additional facts in this case which shed more light upon the reasoning of the majority. For instance, the plaintiff, who was wearing his safety harness and lanyard, was told by his co-worker that his lanyard was not attached to the basket and reminded him to do so. This brings to mind the old Smith v. Hooker Chemical Co. ruling, which held that a recalcitrant worker is one who is affirmatively told to use a safety device and refuses to do so! As for the gate, while the spring-loaded hinge was not working automatically, the gate was still manually operable and could be closed and locked by hand, so that, “if plaintiff had either attached his lanyard as required or closed and latched the gate manually, the provided safety devices would have prevented him from falling out of the basket.” What will create problems is the fact that the decision goes on to say that, “Moreover, as there was no evidence that the lanyard was anything other than an adequate, available and operable safety device that would have prevented any fall by plaintiff, it ultimately is irrelevant whether the gate was functioning automatically as defendant was not required to furnish an additional redundant safety device.” I believe the Court in this case is making a distinction between the gate being a safety device, which was working properly by hand, and the automatic swinging feature which was not working. Dean v. City of Utica, ____ AD3d ____ (4th Dept. 07/09/10) Plaintiff was repairing a large overhead garage door while on a scissor lift. The garage door suddenly began to open, striking the scissor lift and knocking it over, causing plaintiff’s injury. The Court rejected defendant’s contention that the scissor lift was adequate as a matter of law, finding that the fact it tipped over after being struck demonstrates it was “not so placed… as to give proper protection” and therefore violated section 240(1). The Court also rejected the contention that it was plaintiff who was the sole cause of the accident for not properly locking the garage door before beginning to work. This was not the sole cause; according to the Court, it was nothing more than contributory negligence. Calderon v. Walgreen Co.: 72 AD3d 1532 (4th Dept. 06/09/10) This 3:2 decision granted plaintiff summary judgment on his section 240(1) claim since, according to the majority, the plaintiff demonstrated that the scaffold he was on fell over as he was dismantling it. There was some proof in the record that the scaffolding lacked base plates, which presumably caused the scaffold to tip over, as plaintiff had moved all of the material to the rear of the scaffolding where the outrigger was located, resulting in the scaffold tipping over. The actions of the plaintiff were deemed to be comparative negligence and not a defense to the defendant’s failure to provide an adequate scaffold. The duty to provide adequate scaffolding exists even during the dismantling phase of the safety device. The dissenting judges argued that base plates, according to defendant’s expert, only serve to prevent the scaffold from “walking” or sinking into the ground, and therefore had nothing to do with the scaffold tipping over because plaintiff created an unbalanced situation. Harris v. 170 East End Avenue, ____ AD3d ____ (1st Dept. 03/02/10) Plaintiff, a steel worker, was injured when a bundle of stored lumber was knocked loose from its previously secured position on the 10th floor of a building by a crane operator who accidentally struck the bundle while

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in the process of lowering rebar with a crane. Defendant submitted an expert’s affidavit to the effect that the bundle of lumber was properly secured in accordance with custom and practice. Plaintiff was granted summary judgment on his section 240(1) claim upon the Court’s determination that defendant’s witnesses lacked any personal knowledge of how the bundle of lumber was actually stored. The First Department affirmed, stating further that even assuming the bundle had been properly secured as defendant’s expert described, the statute was nonetheless violated because “the statute is one of strict liability. Therefore, it is irrelevant that a safety device was provided if an accident that the device was intended to prevent still befalls the plaintiff. Here, the bundle of stringers fell as a result of a foreseeable construction-related accident, not an act of God or other calamity which defendants could not have anticipated. Thus, section 240(1) was violated, notwithstanding that the bundle may have been chocked in accordance with industry protocol.” Collado v. City of New York, ____ AD3d ____ (1st Dept. 04/06/10) Plaintiff, a dock builder, was standing on a fender near the Third Avenue Bridge when he lost his footing, fell ten feet into the river, and drowned. The Court granted plaintiff summary judgment on the section 240(1) claim, finding that no safety devices were provided to prevent his exposure to the elevation-related hazard of falling. The City's argument that he was given a life vest and failed to use it was inadequate to defeat the motion. The Court also found that the fender he was on was a work location within the meaning of 123 NYCRR 23-1.7(c) and there was evidence that the absence of a continuously patrolling boat as required under Industrial Code Rule 23 could be a proximate cause of his drowning, resulting in a violation of Labor Law section 241(6). Mata v. The Park Here Garage Corp., ____ AD3d ____ (1st Dept. 03/04/10) Plaintiff was repairing defendant’s rolling garage gate. In order to remove a 300 pound tube secured to the top of the entrance way, plaintiff used his extension ladder as a makeshift pulley, throwing a chain over one of the rungs with a co-worker at ground level lowering the chain. Plaintiff was on the ladder when the tube hit the ground, causing plaintiff to lose his balance and fall. The Court found that, as a matter of law, plaintiff was entitled to summary judgment on his section 240(1) claim since defendants failed to provide adequate safety devices. Although defendants did provide plaintiff with an A-frame ladder, which he chose not to use, the Court noted defendants failed to demonstrate how this ladder would provide adequate protection in lowering the metal tube. The one dissenting judge stated the availability of the A-frame ladder created a question of fact and the Court should not have concluded as a matter of law that it was inadequate. NOTE: Does the dissenting opinion create the need for yet another warning label on a ladder - “Don’t use as a substitute for a Hoist”? Walker v. City of New York, ____ AD3d ____ (2nd Dept. 04/20/10) Plaintiff, a laborer, was injured when he fell from a permanently affixed ladder leading to and from street level to an underground sewer main. Plaintiff had just installed a balloon in the sewer main, which was inflated to seal off the sewer line. As he was ascending the affixed ladder, the balloon exploded, causing him to fall. The Court dismissed the section 240(1) claim, stating that, as a matter of law, the ladder was a properly functioning ladder, without any defect, and adequate for the purpose of entering and exiting the sewer main. NOTE: It is possible that the outcome in this case could have been different if plaintiff had been able to demonstrate that there was a foreseeable risk of the balloon exploding, which would result in his falling from the ladder. There would then be a question of fact as to whether the ladder was an adequate safety device under the circumstances then and there existing. In other words, he needed to be protected against falling from the ladder if the balloon exploded, necessitating a safety harness to be used in conjunction with the ladder, or some other safety device to prevent his fall. Another way to make this argument is to cite Joyce v. Rumsey, 17 NY2d 118. "No one is ever physically injured by the existence of an unguarded opening. Something must project him into the hole, but that something cannot be more than a concurrent cause of the injury. The statute put absolute and unconditional liability on the contractor and in favor of the workman who falls through the floor opening which the statute insists must be covered. To hold otherwise would be to

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deprive the worker of the protection afforded him by the Labor Law. To say that a jury in such a case could bring in a no cause verdict would be to say that the jury can nullify the statute." Long v. Cellino and Barnes P.C.: AD3d (4th Dept. 12/30/09) In this legal malpractice lawsuit, the Court found that plaintiff had established that he would have prevailed on his section 240(1) claim but for defendant’s malpractice. Defendant claims there existed an issue in the underlying section 240(1) claim concerning the other available safety devices. The Court held that the duty imposed by the statute “is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give proper protection.” X. SUPERSEDING CAUSE ChaCha v. Glickenhaus, ____ AD3d ____ (2nd Dept. 01/26/10) Plaintiff, a carpenter, was nailing plywood flooring to the floor joists of a building under construction. He was working less than four feet from the unprotected edge of the first floor of the building, which was approximately 10-15 feet above the lower level. A stack of 4 x 8 sheets of plywood was nearby. While plaintiff was bent over nailing plywood to the joists, a strong gust of wind blew the top board of plywood off the stack, which struck the plaintiff and knocked him over the edge to the floor below. The Court found that the defendant violated section 240(1) by failing to provide the plaintiff with an adequate safety device BUT went on to deny summary judgment, stating that plaintiff failed to establish as a matter of law "that his accident was a foreseeable consequence of defendant's failure to provide him with an adequate safety device rather than the result of an unforeseeable, independent, intervening act." NOTE: The Court cited to Gordon v. Eastern Railway, 82 NY2d 562, as support for its conclusion. The Gordon case actually stated that the plaintiff need not establish that the precise manner in which the accident happened was foreseeable. Therefore, ChaCha did not need to establish that it was foreseeable that the wind would blow the plywood in such a manner so as to strike him with sufficient force to knock him over the unprotected edge. He need only establish that it was foreseeable, working less than four feet from the edge, that he could lose his balance and fall over the edge. The Court of Appeals has also stated that, "no one is ever physically injured by the existence of an unguarded opening. Something must project him into the hole, but that something cannot be more than a concurrent cause of the injury. The statute put absolute and unconditional liability on the contractor and in favor of the workman who falls through the floor opening which the statute insists must be covered. To hold otherwise would be to deprive the worker of the protection afforded him by the Labor Law. To say that a jury in such a case could bring in a no cause verdict would be to say that the jury can nullify the statute." Joyce v. Rumsey, 17 NY2d 118. Fenty v. City of New York, ____ AD3d ____ (1st Dept. 03/09/10) In a one paragraph decision, the Court dismissed plaintiff's section 240(1) claim, stating that "plaintiff's injury-producing accident was not attributable to the risk arising from the elevation differentials at his worksite . . . rather was caused by the separate, unforeseeable hazard of hot steam emanating from a ruptured pipe leading to plaintiff's decision to jump from the bucket lift." NOTE: Although there are no details of the facts, presumably a bucket lift provided proper protection from falls and plaintiff deliberately overcame the protective devices in order to escape from the steam. The difference between this and the ChaCha case, is that in ChaCha there were no protective devices to prevent a fall, resulting in a violation of the statute. Here, there is no evidence that the safety device was inadequate to protect plaintiff from the elevation hazard. Riffo-Velozo v. Village of Scarsdale, 68 AD3d 839 (2nd Dept. 12/08/09) Plaintiff was injured while he was installing garage doors. He leaned an extension ladder against a newly installed door and climbed to install a metal arm connected to the electric garage door opener. While on the ladder, the garage door started to lift open, tipping the ladder over and causing him to fall. The Court granted the plaintiff summary judgment on his section 240(1) claim, stating that while the ladder was a safety device, it did not prevent him from falling and thus its core objective was not met, citing Gordon, 82 NY2d 555. The

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fact that the garage door opener began to lift while plaintiff was working was “not of such an extraordinary nature or so attenuated from the statutory violation as to constitute a superseding cause sufficient to relieve the defendant of liability.” deSousa v. Brown, 280 AD2d 447. McCay v. J. A. Jones, ____ AD3d ____ (1st Dept. 06/17/10) Plaintiff’s summary judgment motion on his section 240(1) claim was affirmed upon the principal that the falling bricks that caused him to accidentally step off the platform was not a superseding cause. The Court cited to Joyce v. Rumsey, 17 NY2d 118, which stands for the proposition that there will always be some event which will precipitate the plaintiff worker into a dangerous situation calling for safety devices required under section 240(1). Hajderlli v. Wiljon 59 LLC, ____ AD3d ____ (1st Dept. 03/02/10) Plaintiff sustained his injury when he fell from a ladder placed by his supervisor to reach the ground floor approximately four feet below. Plaintiff's supervisor went down the ladder first. After reaching the bottom, he did not realize, or forgot, that the plaintiff was now at the top of the ladder. The supervisor pulled the ladder away, causing plaintiff to fall. The Court concluded that the supervisor's actions were not foreseeable and, as a matter of law, operated as a superseding event, breaking any causal connection between the violation of the statute and the injury. XI. WHEN DOES §241(6) APPLY? Morgan v. Jacobs, ____ AD3d ____ (4th Dept. 11/13/09) Plaintiff's section 241(6) claim, premised upon 12 NYCRR 23-9.2(a), was dismissed because that provision, which requires power-operated equipment to be kept "in proper operating condition," is not a specific requirement as required under section 241(6).

A. Must Plead and Prove a Specific Industrial Code Rule Violation Mugavero v. Windows by Hart, ____ AD3d ____ (2d Dept. 01/12/10) The Court affirmed denial of defendant’s motion for summary judgment on the section 241(6) claim, finding that plaintiff did identify Industrial Code rules which provided for specific commands which he claimed were violated.

B. The Rule Must Apply to the Facts, Which is a Matter of Law, Not One of Fact McCoy v. Metropolitan Transit Authority, ____ AD3d ____ (1st Dept. 07/01/10) The issue in this case was whether a specific piece of equipment, a Gradall, is to be treated as a mobile crane subject to 12 NYCRR 23-8.2. The Court noted there is no definition in the Industrial Code of the term “mobile crane” and, therefore, looked to the expert testimony presented by both parties. Finding the plaintiff’s expert to be more credible, the Court accepted his testimony, wherein he explained that the Gradall is a multi-purpose piece of equipment, created long after the Industrial Code was written, and could be used for several different purposes, including as a crane. Defendant’s expert testimony was described by the Court simply as stating that the Gradall was manufactured, tested and sold in conformity with industrial safety standards and that it lacked certain characteristics of the subset of equipment known as mobile cranes. St. Louis v. Town of North Elba, ____ AD3d ____ (3rd Dept. 02/18/10) Plaintiff was injured when a section of pipe that was suspended a few feet above the ground in the jaws of a clam shell bucket that was mounted on a front end loader fell on his legs. He brought suit under section 241(6) premised on 12 NYCRR 23-9.4, which states “where power shovels and backhoes are used for material handling such equipment and the use thereof shall . . . be suspended from a bucket or bucket arm by means of a wire rope having a safety factor of four.” At issue was the application of this provision to the facts. The Court stated that 12 NYCRR 23-6.1, which applies to all material hoisting equipment except

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excavation machines used for material hoisting, does not apply since this is an excavation machine and it was being used for the hoisting of materials. Therefore, plaintiff has a valid section 241(6) claim. Smith v. New York City Housing Authority, ____ AD3d ____ (2nd Dept. 03/23/10) Plaintiff brought suit for the injuries he sustained when jack hammering a block wall while standing on a scaffold platform. Part of the wall began to fall and he attempted to step away but fell on piled up debris that has accumulated from the work he was performing. The Court dismissed his section 241(6) claim premised upon 23-1.7(e)(2), which requires debris to be cleaned “insofar as may be consistent with the work being performed.” The plaintiff failed to raise a triable issue of fact as to whether this was applicable to the work being performed. Fassett v. Wegmans, 66 AD3d 1274 (3rd Dept. 10/29/09) Plaintiff, a backhoe operator, was injured while attempting to exit a backhoe. The worksite was extremely muddy, resulting in the accumulation of mud on the battery cover, which also served as a step for the operator getting into and out of the backhoe. The Court found that 12 NYCRR 23-1.7(d) could serve as a predicate for a Labor Law section 241(6) cause of action. That provision provides that no employees shall be permitted “to use a . . . passageway . . . which is in a slippery condition.” The Court found that the battery cover constituted a passageway that plaintiff was required to use in order to exit the equipment. Aragona v. State of New York, ____ AD3d ____ (2nd Dept. 06/29/10) Claimant was injured when he tripped over a padeye which was welded to the deck of a work barge he was carrying lumber on. The Court reinstated the section 200 claim, stating that the accident did not arise out of the manner or method of plaintiff’s work, but by reason of a defect on the premises. Also, it reinstated plaintiff’s section 241(6) claim premised upon Industrial Code rule 23-1.7(e)(1), requiring passageways to be free from obstructions which could cause tripping. Collado v. City of New York, ____ AD3d ____ (1st Dept. 04/06/10) Plaintiff, a dock builder, was standing on a fender near the Third Avenue Bridge when he lost his footing, ten feet into the river, and drowned. The Court granted plaintiff summary judgment on the section 240(1) claim finding that no safety devices were provided to prevent his exposure to the elevation-related hazard of falling. The City's argument that he was given a life vest and failed to use it was inadequate to defeat the motion. The Court also found that the fender he was upon was a work location within the meaning of 123 NYCRR 23-1.7(c) and there was evidence that the absence of a continuously patrolling boat as required under Industrial Code Rule 23 could be a proximate cause of his drowning resulting in a violation of Labor Law 241(6). Cooper v. State of New York, ____ AD3d ____ (2nd Dept. 04/06/10) Plaintiff, an ironworker, slipped on oil shavings and debris located on the scissor lift platform. He did not fall off the scissor lift. Defendant moved for dismissal of plaintiff’s section 241(6) claims, as well as his section 200 and common law claims. The Court denied defendant's motion for claims brought under 12 NYCRR 23-1.7(d), which prohibits owners from permitting workers to use elevated work surfaces that are in a slippery condition. The proof demonstrated the platform was in a slippery condition when the plaintiff first began to use it. The Court did dismiss claims premised upon 23-1.7(e)(2), which requires areas to be free of debris that could cause tripping hazards. Plaintiff did not trip; he slipped on the debris, therefore, this rule was inapplicable as a matter of law. Pereira v. Quogue Field Club, ____ AD3d ____ (2nd Dept. 03/30/10) The plaintiff lost portions of his fingers when he attempted to start a piece of equipment which required pulling a cord. Plaintiff claims his hand was pulled back by the cord and into a pulley which lacked a sufficient guard. The Court dismissed plaintiff’s section 241(6) claim, stating that 12 NYCRR 23-1.5 is a general safety measure and that 23-1.7, dealing with overhead protection, falling hazards, bridge and highway overpass work, and 23-1.8, dealing with eye protective equipment, were both inapplicable to the facts of this case.

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Passaro v. 163-15 Northern Flushing Corp., ____ AD3d ____ (2nd Dept. 02/09/10) Without a discussion of the facts, the Court affirmed dismissal of plaintiff’s section 241(6) claim premised on 12 NYCRR 23-1.7(e)(2), as not being applicable to the facts. Quinn v. Whitehall Properties, ____ AD3d ____ (2nd Dept. 01/05/10) Plaintiff, a steamfitter, was coming off a step-ladder when he tripped on debris that he claimed was cluttering the entire area where he was working. Defendants moved to dismiss plaintiff’s section 241(6) case premised on 12 NYCRR 23-1.7(e)(2), claiming that the debris he fell on “were integral to the work being preformed.” The Court denied the motion, stating defendants failed to demonstrate a prima facie case and also rejected defendants’ argument that plaintiff was the sole proximate cause of the accident. Erickson v. Cross Ready Mix, ____ AD3d ____ (2nd Dept. 07/13/10) Plaintiff was injured when a cement truck was backing up without the presence of a flag person properly positioned to guide the driver. The Court held that plaintiff’s section 241(6) claim premised upon 12 NYCRR 23-9.7[d] was a rule which was applicable to the facts and could serve as a basis for liability. Several other Industrial Code rules were determined not to apply to the facts and were dismissed.

C. Scope of Work Covered by §241(6) Coyago v. Mapa Props. Inc., 73 AD3d 664 (1st Dept. 06/30/10) Plaintiff was working with a flame torch dismantling a boat located on the premises of the defendant. An explosion occurred, causing injury which gave rise to plaintiff’s section 241(6) claim premised upon 12 NYCRR 23-1.25(f). The Court dismissed the section 241(6) claim on the basis that the statute only applies to construction excavation or demolition work. 12 NYCRR 23-1.4(b)(16) defines demolition work as “the work incidental to or associated with the total or partial dismantling or raising of a building or other structure including the removal or dismantling of machinery or other equipment.” The Court held that the “mere act of dismantling a vehicle, whether a boat, a car, or otherwise, unrelated to any other project, is not the sort of demolition intended to be covered by Labor Law section 241(6).” Citing to Caban, 63 AD3d 639. Coleman v. Isg Lackawanna Services, ____ AD3d ____ (4th Dept. 06/11/10) The Court was called upon to decide whether the Industrial Code Rule cited by plaintiff was sufficient to support his section 241(6) claim. After finding several of the cited rules did not apply to the facts of the case, the Court did note that 12 NYCRR 23-2.1(b) was applicable to the facts. Plaintiff was injured when he was operating a diesel-powered water blasting unit which the Court stated fit within the definition of demolition work since it was incidental to, or associated with, the dismantling of the mill at the defendant’s facilities. Sheldon v. Henderson & Johnson, Co., ____ AD3d ____ (4th Dept. 07/09/10) Plaintiff was injured when he slipped and fell on ice in the parking lot of the building where he was working. The definition of worksite for purposes of section 241(6) is not limited to the actual area where the construction work is to be performed, but also includes passageways or walkways to and from the work area. However, here, the parking lot in which plaintiff fell was not a passageway or a walkway and thus did not constitute part of the worksite. D. Type of Activity Covered by Industrial Code Rought v. Price Chopper, 73 AD3d 1414 (3rd Dept. 06/30/10) In this 3:2 decision, the Court denied defendant’s motion seeking dismissal of plaintiff’s section 241(6) case in this fact-specific decision. Plaintiff was assisting co-workers in the process of pulling electrical wires through conduit piping on the interior of a building. The conduit ran four feet straight up to the ceiling, took a 90 degree turn, continued straight and then had two more 90 degree turns. A rope had been threaded through the conduit, one end tied to the electrical wires and the other end to a fork lift which was being used to apply tension on the rope with the design of pulling the wire through. Plaintiff was stationed underneath the four foot vertical conduit helping to thread and push the cable up to the first 90 degree turn. As the fork

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lift applied tension to the rope, the rope broke and the wires came loose from the conduit, striking the plaintiff and causing injury. The issue was whether plaintiff was engaged in hoisting material as the term applies to 12 NYCRR 23-6.2. The dissenting judges viewed the circumstances as presenting an accident which occurred due to friction caused by the 90 degree turns, which had placed resistance on the rope, resulting in it breaking, and the wire recoiling like a spring out of the bottom of the vertical four foot section of conduit. This, they felt, was not hoisting the material. The majority viewed the facts in a different light. Defendant failed to produce evidence “to establish as a matter of law that gravity was not a substantial contributing cause of the wires falling four feet and striking plaintiff.” NOTE: Interestingly, the lower court had dismissed plaintiff’s section 240(1) claim, but plaintiff did not appeal that ruling. If the Court held that the accident was caused by hoisting material under circumstances in which a jury could determine gravity played a substantial factor, the Court would have had to reverse the judgment dismissing the section 240(1) claim. Moll v. Brandwood LLC, 67 AD3d 1364 (4th Dept. 11/13/09) Plaintiff was injured when his foot was caught in a soil shredding machine. The soil had been excavated in connection with a housing development construction project, but the plaintiff and his employer were not part of the construction crew. They were hired in connection with the removal of the top soil from the site, and despite the fact that they were “shredding” the top soil on site before removing it, did not bring them within the requirement of performing construction and/or excavation type activities. E. Notice Ramos v. Patchogue-Medford School District, 73 AD3d 1010 (2nd Dept. 05/18/10) Plaintiff was injured when he was standing near a concrete mixing truck which allegedly had a structural de-fect and/or was in an unsafe condition. The Court dismissed plaintiff’s section 241(6) claim premised on 12 NYCRR 23-9.2(a), which requires all power operated equipment to be properly maintained and in good re-pair and “upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary repairs or replacement . . . any servicing or repairing of such equipment shall be performed only while such equipment is at rest. Plaintiff failed to demonstrate that the defendants had any advance notice or knowledge concerning the claimed structural defect or unsafe condition of the truck. NOTE: Notice requirement in this case specifically deals with 12 NYCRR 23-9.2(a). The defendant cannot be charged with violating this rule, requiring that necessary repairs or replacement of equipment be made, before it is allowed back in service, unless there is some showing that the defendant knew there was an un-safe condition and failed to immediately make necessary repairs. The notice does not go to the issue of prov-ing a section 241(6) case. See, Wenger v. Rizzuto. F. Proof of Negligence and Proximate Cause Required G. Class of People Covered by §241(6) Astoria Generating Co. v. Elliott Turbomachinery Co., 13 NY3d 382 (11/23/09) In this 5:2 decision, the Court of Appeals reversed the Appellate Division's granting of summary judgment to the plaintiff on his section 240(1) claim. The issue centered upon whether the barge where the accident occurred was a vessel under the Longshore and Harbor Workers' Compensation Act (LHWCA) and whether 33 USC §905[b] specifically pre-empts all but negligence claims against vessel owners. Plaintiff was employed by a company that was performing an overhaul of the turbine engines that powered electrical generating turbines which were mounted on four large barges. The barges were stationed at a facility in the Gowanus Canal, which is a navigable waterway. Plaintiff fell from a ladder while working on the generator and collected compensation under the LHWCA, and also brought a Labor Law action against the vessel's owner. The majority determined that the barge did constitute a vessel under Maritime Law. Although the LHWCA does not define vessel, the U.S. Supreme

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Court has held that the statutory definition of a vessel in 1 USC § 3 is applicable and includes every description of water craft capable of being used as a means of transportation on water. 33 USC § 905(b) of the LHWCA states in part that "in the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person . . . may bring an action against such vessel and the employer shall not be liable to the vessel for such damages . . . the remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” This, according to the majority opinion, evidences Congress’ clear intention to pre-empt state law because 905(b) specifically states that only negligence actions can be brought against the vessel's owner and it shall be the exclusive remedy in addition to LHWCA. Sections 240(1) and 241(6) are "strict liability claims" which are not permitted under section 905(b). Therefore, the Labor Law claims must be dismissed. Judge Ciparick, writing the dissenting opinion in which Judge Lippman concurred, takes the position that section 905(b) comes into play only if the plaintiff has a negligence case against the vessel owner. Under circumstances such as this case, there is no negligence and, therefore, no remedy provided by section 905(b), resulting in no "exclusive remedy" that would pre-empt State law. According to the dissent, section 905(b) does not create a new statutory negligence cause of action or Maritime tort. It merely preserves an injured employee’s right to recover for the vessel’s negligence under existing law. Because 905(b) does not apply, its language cannot be used to justify pre-emption. NOTE: In 2000, the Court of Appeals decided Cammon v. City of New York, which held that the New York Labor Law is not pre-empted by section 905(b). The Astoria decision distinguished Cammon by pointing out that Cammon involved an injured worker receiving benefits under LHWCA and a defendant landowner. Astoria was not attempting to bring a claim against a landowner, but the owner of the vessel, which clearly implicates section 905(b). Thus, the Astoria decision does not overrule Cammon; it just held that it was not applicable to the facts of this case. Martinez v. City of New York: 73 AD3d 993 (2d Dept. 05/18/10) Plaintiff’s section 240 and 241(6) claims were dismissed upon the finding that he was not employed in the course of construction, excavation, demolition, etc. He was a maintenance man for a company hired by one of the defendants to operate, monitor and maintain a gas recovery facility at the Fresh Kills landfill in Staten Island. Plaintiff was asked to shut off one of the gas mains so that one of the defendants could begin its work renovating the facility. The Court determined that since none of the covered activities had yet to begin, plaintiff’s task was not part of an already ongoing project. Moreover, he was not employed to perform construction, excavation, demolition, etc. Singh v. City of New York, 68 AD3d 1095 (2nd Dept. 12/22/09) Plaintiff fell from a ladder while cutting down a 16-foot high fence at a construction site in New York City. The defendants alleged that since the accident occurred on Sunday, there was an issue of fact as to whether or not he was employed at the time of the accident. The Second Department rejected the argument stating there was insufficient evidence to raise a triable issue of fact.

H. Who is Responsible Under §241(6)? Pacheco v. Kew Garden Hills Apartment, 73 AD3d 578 (1st Dept. 06/30/10) Defendant’s motion for summary judgment on plaintiff’s labor law claims was denied as a result of the Court determining the defendant did not submit proof which, as a matter of law, demonstrated it did not have the authority to direct and control the work which was delegated to plaintiff’s employer. Moreover, its argument that it was not responsible for the scaffolding which plaintiff fell from is unavailing because its contract required it to furnish the scaffold. Scaparo v. Village of Ilion, 13 NY3d 864 (12/01/09) The Court of Appeals sharpened its definition of “owner” for purposes of the Labor Law in this section 241(6) decision. Plaintiffs were injured when the trench they were in collapsed. The key to understanding the Court's ruling lies in the relationships between the parties with respect to the construction project.

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Co-defendant, Church of St. Mary, had newly constructed a cemetery chapel. The defendant Village was the owner of the sewer lateral to which the church's new chapel was to be connected. In order to complete the connection, the lateral ran from a street intersection in the Village, across the property owned by Herkimer County Industrial Development Agency (IDA), then onto the church's property. The accident occurred on the portion of the lateral that was located on the IDA’s property. The Court of Appeals affirmed the dismissal of the complaint against the IDA under the rule that "some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest," (See Abbatiello, 3 NY3d 46) is necessary to be deemed an owner under the Labor Law. Here, the IDA did not contract for the work, had no choice but to allow the Village to enter the property pursuant to a right of way, and did not grant an easement to the Village or other property interest creating a right of way. The Court also affirmed the dismissal of the complaint against the church. Although an owner does not necessarily have to have title to the property, the owner must have "an interest in the property and [who] fulfilled the role of owner by contracting to have work performed for his [or her] benefit.” See Copertino v. Ward, 100 AD2d 565. Copertino was the homeowner installing a sewer lateral directly from his property, under the street to the sewer main. In that case, however, the homeowner had an easement under the street to the main sewer line. Here, the church had no easement, title or other property interest on the lands owned by the IDA. NOTE: Although this case deals solely with section 241(6), the term “owner” for purposes of section 241(6) must be consistent with both sections 240(1) and 241-a under the doctrine of in pari material. See Allen v. Cloutier, 44 NY2d 290. This case makes it clear that a utility or other easement holder performing work across an owner's property does not make the owner of the property where the accident occurred liable as an owner under the Labor Law unless the owner has some connection to the work, such as hiring the contractor, obtaining a property right in the structure or granting an easement or right of way. Scuderi v. Independence Community Bank, 65 AD3d 928 (1st Dept. 09/15/09) The plaintiff, a carpenter, was injured when he allegedly tripped on some debris. The Court dismissed the Labor Law section 200 and 241(6) claims against a subcontractor on the grounds that it was neither an owner of the property nor a general contractor; presumably it had no responsibility over the work plaintiff was performing for his employer (the GC on the job). The Court, however, allowed plaintiff's common law negligence claim against this defendant stand.

NOTE: Sections 240, 241 and 241-a, apply only to owners and their contractors. The term "their contractors" refers to those they contracted with to perform the work. When a general contractor, who has complete authority over all of the work, delegates a portion of the responsibility to a subcontractor, the subcontractor is only responsible under the Labor Law for those areas of the work and job site that have been delegated to them. They owe no Labor Law responsibility to anyone outside the domain of the work they agreed to perform. In this case, the plaintiff worked for the general contractor and his injuries arose out of work outside the domain of the subcontractor. See, Russin 54 NY2d 311. Ferreira v. Village of Kings Point, ___ AD2d ___ (2nd Dept. 12/22/09) The plaintiff was injured when the unshored trench he was in collapsed. Defendant village engaged a paving contractor to perform work on its roadway drainage project. During the course of the work, it was discovered that the water mains below the roadway required repair. The local water authority (not the village) hired the plaintiff's employer to perform this work. The village argued that it was not an owner for purposes of the Labor Law because there was no nexus between the plaintiff and the village. The Court rejected this argument, stating that the burden placed upon a defendant alleging it is not an owner under the Labor Law is a heavy one and was not met in this case. The Court did dismiss the section 240(1) claim, since this was not a danger caused by an elevation differential. It was, however, held to be a valid section 241(6) case.

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Collins v. Switzer, ____ AD3d ____ (1st Dept. 01/05/10) Plaintiff, an electrician, was injured when he stepped off a ladder and slipped on debris. Defendant sought summary judgment on plaintiff's section 241(6) claim, premised upon 23-1.7(e)(2), which requires work areas to be free from accumulated debris, claiming a statement in an accident report that plaintiff slipped on “conduit debris,” material defendant claimed plaintiff himself created. The Court stated plaintiff's ebt demonstrated other trades were working at the same time and therefore there was a question of fact as to what type of debris he fell on and who placed it. Minorczyk v. Dormitory Authority, ____ AD3d ____ (1st Dept. 06/24/10) The Court affirmed a jury verdict in favor of the plaintiff, stating that the defendant was “the eyes, ears, and voice of the owner,” with complete supervisory authority, making it an agent of the owner for purposes of section 241(6). Figurny v. Irastan, LLC, 67 AD3d 985 (2nd Dept. 11/24/09) Court granted the defendant Strober Building Supply, Inc., summary judgment dismissing all claims on the basis that it was not an owner, a contractor or agent under the Labor Law. Ficano v. Franklin Stucco Supply: 72 AD3d 1018 (2nd Dept. 4/27/10) Without detailing the facts of this case, the Court dismissed plaintiff’s section 240(1) claim against one of the defendants on the basis that there was no proof that the moving defendant was delegated the authority to supervise and/or control the work being performed by plaintiff and, therefore, defendant was not an owner, contractor or an agent for purposes of section 240(1). I. Claim Premised upon section §241(8) Nothing new or novel for 2009-2010. XII. DEFENSES UNDER §240 AND §241

A. One- and Two-Family Homeowners Statutory Exemptions Dineen v. Rechichi, ____ AD3d ____ (4th Dept. 11/13/09) This case involved whether defendants were entitled to the 1-2 family exemption from the Labor Law claims plaintiff brought. The accident occurred as the plaintiff was working on a barn located on a 130 acre parcel owned by the defendant. No other structures were present. The Court rejected defendant’s contention that the exemption could not apply because there was no residence and/or the barn would be used for commercial purposes. The plaintiff demonstrated that six acres of the 130 acre parcel had already been surveyed and labeled as future home, barn, pond and driveway. The barn was the first structure to be built, so it could hold plaintiff’s belongings while the residential structure was being built. This, the Court held, was therefore property which was intended to be used as a residential premise and the fact that the barn was built before the house does not negate the exemption. Affri v. Basch, 13 NY3d 592 (11/24/09) Plaintiff fell from a ladder while installing a vent through the roof of a two-family home owned by defendant. The issue involved whether the defendant could be found to have directed and/or controlled the method and/or manner of the work plaintiff was performing so as to lose the 1- or 2-family home exemption under the Labor Law. Judges Pigott, Graffeo, Read and Smith determined that the plaintiff failed to raise a legitimate, triable issue of fact that the defendant's involvement exceeded the typical (and allowed) decision-making by homeowners who are concerned with the final product, but not the manner and method of how it is performed. They felt the defendant's participation did not amount to direction over the method or manner of the work. Judges Lippman, Ciparick and Jones dissented, noting that the issue on appeal was whether plaintiff produced enough facts upon which a jury could conclude defendant exceeded the typical homeowner involvement, so as to lose the exemption. In support of their view, they pointed to the fact that

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the plaintiff was concerned about the owner’s decision to move a sink to a different location, even though plaintiff made him aware he would have to cut a support beam, which defendant directed him to do. The defendant also directed plaintiff to run the vent for the washer/dryer through the roof rather than through the window, even though the plaintiff expressed reservations of doing so for fear of his own safety. Additionally, there were facts upon which a jury could conclude the defendant induced the plaintiff to perform work on the roof, despite plaintiff expressing concerns for his safety. Lenda v. Breeze Concrete Corp., 73 AD3d 987 (2nd Dept. 06/30/10) The Court was called upon to apply the 1- or 2- family exemption to a single family structure where plaintiff was hurt. The Court denied the exemption on the grounds that the owner, who lived in California, had hired a contractor to build a one family home upon a parcel of land which had an 18,000 square foot house that the defendant’s family used for vacation. The single family structure, upon its completion, was to be used as a residence by the caretaker hired by defendant to look after the vacation home and other properties. Although he lived there rent free, the Court felt this did not give rise to the structure becoming a 1-2 family residence. Truppi v. Busciglio, ____ AD3d ____ (3rd Dept. 03/17/10) This case involved the issue of whether the one family structure being renovated was to be used for rental property or whether it was the continued home of defendant. The test which “must be employed on the basis of the homeowners’ intention at the time of the injury underlying the action and not their hopes for the future” is whether the owner intends to use the dwelling for commercial purposes or residential. Chapman v. Town of Copake, 67 AD3d 11174 (3rd Dept. 11/12/09) The plaintiff sustained injuries when a retaining wall he was working on collapsed. The Court dismissed the claim against the defendant owners under the 1-2 family exemption. Although the defendants did participate in the construction, they did not do so in a manner which amounted to the direction or the control of the work being performed by plaintiff. Morocho v. Marino Enterprises, 65 AD3d 675 (2nd Dept. 08/25/09) Plaintiff’s section 241(6) claim was dismissed under the 1-2 family exemption. Although plaintiff’s daughter lived in the home and paid the mortgage and taxes on the property, this did not destroy the 1-2 family exemption. Parnell v. Mareddy, ____ AD3d ____ (2nd Dept. 01/26/10) The Court granted defendant summary judgment dismissing the Labor Law claims, finding that they had made out a prima facie showing of entitlement to the 1-2 family exemption for sections 240(1), 241(6), and 241-a. Also, section 200 was dismissed, as there was no direction and control of the work by defendants. Gittins v. Barbaria Constr. Corp., 74 AD3d 744 (2nd Dept. 08/25/10) Defendant was granted summary judgment under the 1-2 family homeowner exemption since the only oppo-sition proof was that the plaintiff “would sometimes see the homeowner talking to his supervisor,” and that, according to the plaintiff, somehow created an issue of fact as to whether the defendant exercised direction and control over the work so as to lose the exemption. Walsh v. Kresge, ____ AD3d ____ (2nd Dept. 01/05/10) Plaintiff brought suit against the defendant owner of a one family home. The Court granted plaintiff summary judgment, stating plaintiff showed a prima facie case that defendant did exercise direction and control over the work and defendant failed to submit facts sufficient to create an issue of fact. Bucklaew v. Walters, ____ AD3d ____ (4th Dept. 07/09/10) Plaintiff’s section 240 and 241(6) claims were dismissed based upon the 1-2 family exemption since there was no showing that the defendant exercised direction and control over the work.

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B. Comparative Negligence C. Engineers and Architects

D. Workers’ Compensation Weitz v. Anzek Construction Corp., 65 AD3d 678 (2nd Dept. 08/25/09) The main issue in this case involves the identity of plaintiff’s employer. The defendant was denied summary judgment upon its claim that it was plaintiff’s employer, since the Court concluded there were questions of fact in the relationship between defendant and an entity named Steve & Andy, Inc. The fact that plaintiff was found to be entitled to recover compensation benefits from the defendant, according to the Workers’ Compensation Board, was not conclusive proof that he was employed by that corporation. Since the issue was not in dispute and there was no specific adjudication of the issue. Len v. State of New York, ____ AD3d ____ (3rd Dept. 04/20/10) Plaintiff, an employee of the New York State Canal Corporation, was in the course of his employment trying to free a small tree lodged in one of the lock’s gates when he fell and drowned. The property is actually owned by the New York State Thruway Authority. The Court dismissed the claims under Worker’s Compensation Law Section 11. The Authority was the parent corporation for its subsidiary, the Canal Corporation. Under the statutory scheme, the Court concluded the corporation was formed for the sole purpose of carrying out the Thruway Authority’s duty to maintain the canal system and that their governing board members were the same, they received no additional pay, there is a co-mingling of funds, and, therefore, the Thruway Authority was the alter ego of plaintiff’s employer. McGee v. Van Erden: 66 AD3d 1426 (4th Dept. 10/02/09) The Court reversed the lower court’s decision that an issue of fact existed as to whether plaintiff was an independent contractor or an employee, which would preclude his section 240(1) claim against the owner of the property. The Court held that the Workers’ Compensation Board is the forum that has primary jurisdiction with respect to these issues, and remitted the case to Supreme Court to determine the motion and cross-motions of the parties after final resolution of a prompt application to the board, to determine the rights, if any, of plaintiff to benefit under Workers’ Compensation Law. E. Grave Injury Nothing new or novel for 2009-2010. F. Special Employee XIII. CONFLICTS OF LAW ISSUES INVOLVING A LABOR LAW Nothing new or novel for 2009-2010. XIV. LIABILITY OVER: INDEMNIFICATION/CONTRIBUTION Cunha v. City of New York, 12 NY3d 504 (Ct. of Appeals 06/09/09) Plaintiff was injured when he was instructed to go into an unshored trench and dig by hand. Just before trial, Supreme Court granted the City's motion to dismiss the section 200 claim. On the day of the trial, the parties reached a settlement agreement which provided that the plaintiff was to receive $1.2 million (city paying $800,000 and co-defendant paying $400,000). The City conceded a violation of Labor Law section 241(6) premised upon 12 NYCRR 23.4. The defendants then proceeded to try the issue of liability and apportionment and the jury was asked to answer three questions: 1) Was the defendant contractor negligent? 2) Was the negligence of the defendant contractor a substantial factor? 3) What is the percentage of fault of the contractor? The jury answered the first two questions in the affirmative and found the contractor 40% at

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fault. The jury was not asked to determine where the other 60% fault lay. After the verdict, the City asked for a directed verdict that the contractor indemnify the City for 100% on the basis that it was only vicariously liable under section 241(6). The Court of Appeals repeated its longstanding holding that the defendant is entitled to indemnification, in full, only if it was vicariously liable with no active or direct fault on its own part. The Court pointed out that the contractor waived any objection to the jury not being asked to determine where the other 60% of fault lay. Moreover, the Supreme Court, in granting the motion to dismiss the section 200 claim against the City, had determined the City was not actively at fault. Also, the contractor apparently conceded that the City's act of negligence was not an issue at trial. Armentano v. Broadway Mall Properties, ____ AD3d ____ (2nd Dept. 02/02/10) Plaintiff, who was injured when he fell through an opening in the floor covered by an unsecured piece of plywood, sued the general contractor and the demolition contractor who created the opening for a garbage chute. Plaintiff was granted summary judgment and the defendant’s owner, GC and demolition contractor tried their various cross-claims. The jury found the general contractor negligent. The Second Department affirmed denial of the post-trial motions of the general contractor's contractual indemnification claim against the demolition contractor since there was a finding of negligence on the part of the general contractor and Section 5-322.1 prohibits a construction contractor from indemnification for its own negligence. The Court also refused to apply the "anti-subrogation rule," even though the GC was named as an additional insured on the demolition contractor’s policy. Here, the Court held, the general contractor was not seeking to recoup any of its insurance proceeds from the additional named insured. The insurer was merely defending the demolition contractor against cross-claims asserted by the GC, and the anti-subrogation rule does not apply. Auchampaugh v. Syracuse University, 67 AD3d 1164 (3rd Dept. 11/12/09) This case involves one defendant's claim for contractual indemnification against the other defendant. Defendant GE claims that after its standard purchase order was signed, which contained a clause that there were additional terms incorporated into the purchase order, and after the work commenced, GE sent the standard terms to the co-defendant, which contained an indemnification clause. The Court held there was an issue of fact as to whether or not there was a valid agreement between the parties that the contract was subject to a written agreement setting forth contractual indemnification. A question of fact exists since co-defendant claimed it was told the purchase order was the only relevant document. Wheeler v. Citizens Telecommunications Co., ____ AD3d ____ (3rd Dept. 03/04/10) Plaintiff was injured when a defective utility pole fell over. The pole was owned by third-party defendant NYSEG and the accident occurred when the plaintiff was removing the defendant’s telecommunication wires from the defective pole. Plaintiff was hired to remove these wires from the defective pole onto a new one. In addition, Time Warner Cable had also leased space for one of their TV cables which was still attached to the defective pole at the time of the accident. Since it is undisputed that Time Warner neither contracted for, nor benefitted from, plaintiff’s work, nor was Time Warner’s cable being worked upon at the time of the accident, there were insufficient facts to impose owner liability against Time Warner. Siegel v. RRG Fort Green, Inc., ____ AD3d ____ (1st Dept. 12/29/09) The Court granted summary judgment to the plaintiff on this section 240(1) claim based on a finding that he set forth a prima facie case to which defendants failed to raise an issue with regard to plaintiff’s actions being the sole proximate cause. The owner of the property was granted summary judgment on his indemnification claim against the contractor since there was no showing it created or had notice of the alleged defective condition of the floor. The Court denied the indemnification claim of the general contractor against the subcontractor since there was an issue of fact as to whether the subcontractor created the alleged defective condition. Tarpey v. Kolanu Partners, LLC, 68 AD3d 1099 (2nd Dept. 12/22/09) This case involves motions between the defendant and third-party defendant concerning their indemnification agreement. Plaintiff’s claim was based upon the presence of waste at the worksite and insufficient lighting that caused him to trip. A party is not entitled to judgment of indemnification on a motion unless the record establishes as a matter of law that they are totally free from negligence. The Court

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determined that was not the case here. The trial was necessary to determine whether defendant was in any way to blame for the accident. Likewise, the claim for indemnification could not be dismissed because whether the defendant was negligent or not had yet to be determined. Williams v. City of New York, 67 AD3d 421 (1st Dept. 11/05/09) Plaintiff brought Labor Law and common law negligence claims against defendant owner. His common law and section 200 Labor Law claims were dismissed and he did not appeal therefrom. Defendant moved for summary judgment on its third-party claim seeking indemnification. “Accordingly, third-party defendant is not relieved of its contractual obligation to indemnify defendants by Section 5-322.1, which prohibits contractual indemnification of a party that was actively negligent, but not of party that merely had statutory vicarious liability for the negligence of another. Caballero v. Beechwood, 67 AD3d 849 (2nd Dept. 11/17/09) Plaintiff was granted summary judgment against the owner and general contractor after establishing that his fall from a scaffold was caused by one of its wheels slipping into a hole. In turn, the Court granted the owner and general contractor summary judgment on their indemnification agreement against a subcontractor ("an indemnification agreement that purports to indemnify a party for its own negligence is void under General Obligations Law section 5-322.1; such an agreement does not violate the General Obligations Law if it authorizes an indemnification to the fullest extent permitted by law." Giangarra, 55 AD3d 869.) DiFilippo v. Parkchester, 65 AD3d 899 (1st Dept. 09/15/09) The plaintiff sustained his injuries when he slipped on water and debris. The Court allowed plaintiff to proceed on a section 241(6) claim against the lessee and its manager. The lessee moved against the worker's employer, seeking summary judgment for contractual indemnification. The motion was denied as there were issues of fact as to whether defendant was at fault, which would preclude indemnification under GOL 5-322.1. Baginski v. Queen, 68 AD3d 905 (2nd Dept. 12/15/09) In this Labor Law case, the defendant commenced a third-party claim against plaintiff's employer, seeking to enforce an indemnification agreement. The Court agreed that the third-party defendant was hired under an annual subcontractor's agreement which contained a clear indemnification provision allowing recovery as provided under Workers' Compensation Law, Section 11. Bovis v. Crab Meadow Enterprises, 67 AD3d 846 (2nd Dept. 11/17/09) The third-party defendant, plaintiff's employer, was denied summary judgment under Workers Compensation Law, Section 11, which prohibits suits against an employer if there is no grave injury and/or written indemnification agreement, since the third-party defendant failed to establish the absence of any written indemnification agreement. The Court also dismissed the claim by defendant's insurer that there was no obligation to provide a defense to plaintiff's claim, pointing out that an insurer's obligation to defend is broader than the obligation to provide coverage. Quilliams v. Half Hollow Hills School District, 67 AD3d 763 (2nd Dept. 11/10/09) Plaintiff, an ironworker, was injured when he fell some 20 feet from an I-beam that he was attempting to pry into place when it suddenly dropped four feet. The Court granted the owner and general contractor indemnification against the subcontractor, finding that the accident was due to the subcontractor’s methods and manner, and not due to any dangerous condition on the job site or an unsafe condition created by the GC. Mendelsohn v. ICON Construction, 67 AD3d 753 (2nd Dept. 11/10/09) The Court denied defendant’s motion seeking summary judgment on its cross-claim on indemnification, stating defendant failed to establish its prima facie entitlement that it was not negligent to any degree in causing the accident.

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Hirsch v. Blake Housing, LLC, 65 AD3d 570 (2nd Dept. 08/11/09) Defendant’s motion for summary judgment on its indemnification claim was denied since plaintiff’s claim was based upon a dangerous condition upon the premises and defendant, the GC, did not establish as a matter of law that it had no control over the premises. XV. PRE-EMPTION OF FEDERAL ADMIRALTY LAW Lee v. Astoria Generating Co. v. Elliott Turbomachinery Co., 13 NY3d 382 (11/23/09) In this 5:2 decision, the Court of Appeals reversed the Appellate Division's grant of summary judgment to the plaintiff upon his 240(1) claim. The issue centered upon whether the barge upon which the accident occurred was a vessel under the Longshore and Harbor Workers' Compensation Act (LHWCA) and whether 33 USC §905[b] specifically pre-empts all but negligence claims against vessel owners. Plaintiff was employed by a company that was performing an overhaul of the turbine engines which powered electrical generating turbines that were mounted on four large barges. The barges were stationed at a facility in the Gowanus Canal, which is a navigable waterway. Plaintiff fell from a ladder while working on the generator and collected compensation under the LHWCA. He also brought a Labor Law action against the vessel's owner. The majority determined that the barge did constitute a vessel under Maritime Law. Although the LHWCA does not define vessel, the U. S. Supreme Court has held that the statutory definition of vessel in 1 USC § 3 is applicable and includes every description of water craft capable of being used as a means of transportation on water. 33 USC § 905(b) of the LHWCA states in part that "in the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person . . . may bring an action against such vessel and the employer shall not be liable to the vessel for such damages . . . the remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” This, according to the majority opinion, evidences Congress’ clear intention to pre-empt state law because 905(b) specifically states that only negligence actions can be brought against the vessel's owner, and it shall be the exclusive remedy in addition to LHWCA. Sections 240(1) and 241(6) are "strict liability claims" which are not permitted under section 905(b). Therefore, the Labor Law claims must be dismissed. Judge Ciparick, writing the dissenting opinion in which Judge Lippman concurred, takes the position that section 905(b) comes into play only if the plaintiff has a negligence case against the vessel owner. Under circumstances such as this case, there is no negligence and therefore no remedy provided by section 905(b), resulting in no "exclusive remedy" that would pre-empt state law. According to the dissent, section 905(b) does not create a new statutory negligence cause of action or Maritime tort; it merely preserves an injured employee’s right to recover for the vessel’s negligence under existing law. Because 905(b) does not apply, its language cannot be used to justify pre-emption. NOTE: In 2000, the Court of Appeals decided Cammon v. City of New York, which held that New York Labor Law is not pre-empted by section 905(b). The Astoria decision distinguished Cammon by pointing out that Cammon involved an injured worker receiving benefits under LHWCA and a defendant land owner. Astoria was not attempting to bring a claim against a land owner, but the owner of the vessel, which clearly implicates section 905(b). Thus, the Astoria decision does not overrule Cammon, it just held that it was not applicable to the facts of this case. Ashjian v. Orion, ____ AD3d ____ (2nd Dept. 02/09/10) Plaintiff was injured when he stepped into an unguarded opening on the deck of a barge that was being overhauled. This project involved one of the four power generating barges in which the Court of Appeals in Lee v. Astoria, ____ NY2d ____ (11/23/09) previously held that the barge was a vessel and, under the LHWCA, New York State Labor Law was preempted. Based upon this ruling, the Court dismissed the lower court's order permitting plaintiff to amend his complaint to add Labor Law causes of action. XVI. §241-a LIABILITY Brownrigg v. NYC Housing Authority, ____ AD3d ____ (2nd Dept. 02/02/10) Plaintiff was injured while working in an open elevator shared by two elevator cars. One was operational while the other was being worked upon. Plaintiff was struck in the eye by a tool which was accidentally

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knocked off the elevator car being worked on by plaintiff's co-worker. It fell several stories, striking plaintiff as he was about to enter the operational elevator cab. Plaintiff argued that section 241-a required planking every other floor, which was not done, and which resulted in his injury. Defendant argued there was a question of fact as to whether the work could have been performed if planking had been installed since it would have interfered with the operational car. The Second Department reversed the trial judge's grant of a directed verdict for plaintiff in reliance on the 1967 case, Brzoza v. Park, P.E.P. Corp., 28 AD2d 867. In that case, the Second Department held that where "the work could not have been performed or not performed efficiently if the shaftway had been planked over," a defendant does not violate Labor Law section 241-a by failing to install planking. NOTE: The basis for this decision is questionable. In 1969, sections 240 and 241 of the Labor Law were significantly amended. These amendments gave rise to the reinstatement of absolute liability for violations of section 240 and vicarious liability for both sections 240 and 241(6). The Court of Appeals in Khela v. Neiger, 85 NY2d 333 (1995), ruled that section 241-a is to be read (interpreted) in pari materia with section 241 and "construed together as though forming part of the same statute.” In Khela, the Court of Appeals interpreted section 241-a to apply to "all contractors, owners and their agents, except owners of 1- and 2- family dwellings who contract for but do not direct or control the work," which was to be read into the statute despite the fact that these words are not contained therein because this section of the Labor Law related to the same subject matter and concerns addressed by sections 240 and 241. In Ross v. Curtis-Palmer, the Court of Appeals held that section 240(1)-(5) set forth specific commands which, if not complied with, result in absolute liability. Section 241(6), however, requires reference to the Industrial Code Rules and, therefore, did not amount to an absolute liability cause of action. Since Section 241-a does not require reference to outside rules and regulations, a violation of its terms results in liability per se. Besides, Brzoza was decided under the current version of section 241-a. XVII. Section 200 Martinez v. Tambe Electric Inc. , ____ AD3d ____ (4th Dept. 02/11/10) Plaintiff received an electrical shock while on a ladder, causing him to fall. The Court denied defendant summary judgment on the Labor Law claims on the grounds it failed to prove as a matter of law that it was not an agent of the general contractor with respect to the work that resulted in plaintiff’s injury. The defendant also failed in its attempt to obtain dismissal of plaintiff’s section 200 cause of action. Here, plaintiff alleged that the injury was caused by a defective condition of the premises, and not due to the manner or method of his work or his tools. A subcontractor of the general contractor could, therefore, be held responsible, since the theory of the negligence has nothing to do with the manner or method of plaintiff’s work. Seda v. Epstein, ____ AD3d ____ (1st Dept. 04/06/10) This case solely involves section 200 of the Labor Law. Plaintiff was injured when he stepped outside a building onto the ledge to clean a window that he claimed was painted shut and which he could not reach from the inside. The Court found that, in view of plaintiff’s testimony that he had given notice to the defendants a year earlier that the window frame needed to be repaired, and that the defendant told him on the day of the accident that it had been repaired, there was an issue of fact as to whether plaintiff was the sole proximate cause. Barillero v. Shorehaven, ____ AD3d ____ (2nd Dept. 01/05/10) Plaintiff, a plumber's helper, was injured while shoveling fill to cover pipes in a 1 ½ - 2 foot deep trench and the ground beneath his feet collapsed. His eye struck an uncapped rebar protruding from the foundation wall next to the trench. The Court affirmed dismissal of the section 240(1) claim, stating it was not an injury directly flowing from the application of the force of gravity as per Runner v. New York Stock Exchange. The section 241(6) claim was dismissed since the only Industrial Code rule cited, 23-1.7(b)(1), requiring guarding against hazardous openings, was determined not to be applicable as a matter of law since the 1 ½ -2

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foot deep trench is "not a hazardous opening" within the meaning of the rule. The section 200 claim was reinstated, despite the fact that defendants did not supervise or control the method or manner of the work giving rise to the injury, because plaintiff's claim was founded upon an alleged defect or dangerous condition on the premises for which a defendant will be liable if they create a dangerous condition or are known to have had notice of the danger. Mitthauer v. Moriarty, ___ AD3d ___ (2nd Dept. 01/05/10) The plaintiff was injured when he fell while stepping out of a portable toilet on the job site. Although on the motion he said that for five feet around the outside of the toilet the ground was unleveled with "hills and valleys,” he testified at his deposition that he honestly could not tell what caused his fall. The Court dismissed the Labor Law section 200 claim and the common law claim on the grounds the plaintiff failed to demonstrate a dangerous or defective condition which actually caused his fall. The Court dismissed the plaintiff's reply affidavit which alleged that the toilet was unsteady and improperly placed. This, the Court said, contradicted his earlier deposition testimony that it was steady at the time of the accident and, therefore, the Court disregarded the plaintiff's contention describing the new testimony as raising feigned issues of fact designed to avoid the consequences of an earlier deposition. The section 241(6) claim was preserved for trial. Astarita v. Flintlock Construction Services, LLC, ____ AD3d ____ (2nd Dept. 01/26/10) The Court refused to dismiss plaintiff's section 200 claim against defendants, stating defendants failed to prove a prima facie case that they did not have control over the worksite, or actual or constructive notice of the dangerous condition. Bowman v. Beach Concerts, 66 AD3d 596 (1st Dept. 10/29/09) Plaintiff's opposition to defendant's motion seeking summary judgment on plaintiff's section 200 and common law negligence claims was held to be deficient. Previously, plaintiff moved to vacate a default in which he produced proof of a meritorious case. Plaintiff argued this previous ruling was "law of the case," that there was merit to these claims, and therefore they could not be dismissed on summary judgment. The Court noted "that a finding of merit sufficient to vacate a plaintiff's default does not preclude a subsequent granting of summary judgment to defendants.” This argument alone is insufficient to defeat summary judgment. Bush v. Mechanicville Warehouse Corp., 69 AD3D 1207 (3rd Dept. 01/21/10) Plaintiff was injured while attempting to free a box of merchandise that was stuck to the surface of the pallet as a result of water leakage in a warehouse roof. Defendant owner of the warehouse moved for summary judgment seeking dismissal of the section 200 claim, which was denied on the basis that the lease imposed upon the defendant owner the obligation to maintain and repair the roof. Since there was proof on the record that the owner was on notice of the leaking roof, questions of fact existed that were sufficient for a jury. Colon v. Bet Torah, Inc., 66 AD3d 731 (2nd Dept. 10/13/09) Plaintiff was injured while carrying materials through the worksite when he stepped on a grease pit cover that became dislodged and caused him to fall into the pit. Defendants moved for summary judgment on the common law negligence and section 200 claims, which the Court denied. "When an accident arises from a dangerous condition on the premises, an owner may be held liable if it created the condition or failed to remedy it despite actual or constructive knowledge of it (citations omitted). Moreover, if a reasonable inspection would have disclosed the dangerous condition, the failure to make such an inspection constitutes negligence and may make the owner liable for injuries proximately caused by the condition.” Fiallos v. Bin's Crown Realty, ____ AD3d ____ (2nd Dept. 02/02/10) Without any statement of the facts, the Court granted summary judgment to defendant and dismissed plaintiff's section 200 claim, stating it had established the plaintiff's injury was caused by the method or materials of his work and not by a dangerous condition on the premises.

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Harkin v. City of New York, ____ AD3d ____ (2nd Dept. 01/26/10) The plaintiff tripped over debris as he was walking from the construction site to a shanty. The Court found questions of fact with respect to the section 200 claim, as well as the 241(6) claim, and denied defendant summary judgment. There was proof in the record upon which defendant could be found to have actual or constructive notice of the cluttered condition of the area plaintiff had to cross. Husted v. Central NY Oil and Gas, 68 AD3d 1220 Plaintiff fell from a ladder when one of its legs slipped into a 3” diameter hole in the floor which was covered with a plastic sheet. Plaintiff’s section 200 claim and common law claim should not have been dismissed since plaintiff’s injury resulted from a dangerous condition on the premises and defendant failed to show, as a matter of law, that it had inspected and maintained the premises in a reasonably safe condition. Schultz v. Hi-Tech Construction, ____ AD3d ____ (2nd Dept. 01/12/10) This case dealt solely with section 200 of the Labor Law where the general contractor was denied summary judgment on his dismissal motion. The Court found plaintiff’s claim was that the ladder slipped as a result of a dangerous condition, and not rising out of the manner in which he performed his work. The general contractor may be held liable under common law negligence and section 200 if it has control over the work site and actual or constructive notice of the dangerous condition. XVIII. NOTICE OF CLAIM Baker v. Town of Niskayuna, ____ AD3d ____ (3rd Dept. 01/07/10) Plaintiff was injured when the trench he was working in collapsed. Suit was brought against the Town and the engineering firm it retained on this sewer project. At the conclusion of the discovery, summary judgment was granted to both defendants and all of plaintiff's Labor Law claims were dismissed. On appeal, the dismissal of the 240 claim was affirmed since it was not an elevation-related case. Dismissal of the section 200 claim and common law negligence claim was affirmed since there was no showing defendants were in control of the site or supervised the work. But the Court reversed and reinstated the section 241 claim, finding that the notice of claim sufficiently apprised the town of the cause of action. "Although it did not reference specific Labor Law sections, it asserted culpable conduct by the town as a cause of the accident." The Court also found plaintiff had adequately alleged within the context of the lawsuit Industrial Code rules sufficiently specific to support the section 241(6) claim. The Court did affirm dismissal of the section 241(6) claim against the engineering firm since there was no showing that it had either agreed, or had the authority, to supervise and control the work giving rise to plaintiff's accident. NOTE: Claimant does not have to set forth applicable specific/concrete Industrial Code rules to support a section 241(6) claim in the Notice of Claim, as long as the Notice of Claim sufficiently apprises the Town of the date, time, location of the accident, the way in which the accident occurred and that the accident arose out of culpable conduct on the part of the town. XIX. SECTION 202 - WINDOW WASHER STATUTE XX. UNDOCUMENTED ALIEN WORKER

Macedo v. J.D. Posillico, ____ AD3d ____ (1st Dept. 12/10/09) Plaintiff and a co-worker fell from an elevated platform. Defendants claimed that there was a question of fact as to whether the platform failed or bent prior to the fall. The Court held this to be irrelevant because there was no question that neither the plaintiff's safety devices nor the platform prevented his fall or subsequent injury. Defendant's proof - that after the accident no repairs were made to the platform and that it was secure - does not refute the eyewitness testimony that the platform bent at the time of the accident. The Court also resolved the issue of lost wages in favor of the plaintiff, who apparently was an undocumented alien. Although plaintiff had a false social security number, the proof was that the defendant was not provided with this until months after the accident took place. Therefore, no false documents were used by plaintiff to secure

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employment and it was the defendant that failed to comply with employment verification in good faith. Under Balbuena, 6 NY3d 388, plaintiff is therefore entitled to recover lost wages. XXI. MISCELLANEOUS Beshay v. Eberhart, ____ AD3d ____ (2nd Dept. 01/19/10) Plaintiff was struck in the eye by a piece of a circular saw blade which was alleged to have been defective. Suit was brought against the manufacturer of the blade. The owner of the premises was sued under Labor Law sections 200, 240(1), 241(6) and common law negligence. At the close of plaintiff's opening statement, the Court granted defendant's motion dismissing all claims after plaintiff was given an opportunity to "reopen" but refused to change any statements made. The Court reinstated the product liability claim against the manufacturer. Also, the Court reinstated the section 200 and common law negligence cause of action, finding that the complaint, as amplified by the Bill of Particulars, adequately alleged a viable cause of action. The section 240(1) claim was dismissed on a previous motion and the section 241(6) claim, premised upon 23-1.8(a), requiring approved eye protection, was dismissed, since plaintiff's counsel in opening admitted plaintiff was wearing protective eye gear but had chosen to take the gear off to clean it and it was after the removal that the accident occurred. NOTE: The Court listed the three instances when dismissal of plaintiff's complaint after the opening statement was warranted: 1.) When the complaint does not state a cause of action; 2.) When the cause of action is otherwise conclusively defeated by way of a defense and clearly admitted as a fact to support it; or 3.) Plaintiff's counsel made some admission or statement of fact that completely compromises the cause of action, allowing judgment as a matter of law to be granted. Lue v. Finkelstein & Partners, LLP, 67 AD3d 1187 (3rd Dept. 11/12/09) Defendants commenced a section 240(1) claim against Kmart and a products liability claim against United Rentals, Inc., for injuries sustained in connection with the use of a leased scissors lift on Kmart’s property. When Kmart filed for bankruptcy, defendant was accused of having failed to protect and preserve the claim in bankruptcy court. The products claim against United Rentals was eventually settled for $235,000. In this malpractice lawsuit, defendants sought to question plaintiff about conversations with his attorney involving the settlement negotiations. The Court held these communications were privileged through the attorney-client relationship and were not waived by commencing a malpractice claim, alleging plaintiff’s lawsuit was settled for less than the full value which could have been recovered under section 240(1). Vukovich v. 1345 Fee, LLC, 72 AD3d 496 (1st Dept. 04/13/10) A jury awarded the plaintiff $1,661,000.00 for future pain and suffering, and $2,103,249.00 for future lost earnings. Post-trial motions resulted in the Court granting a new trial on damages unless the plaintiff stipu-lated to reducing both elements of damages to $1,000,000.00 each. The Appellate Division affirmed, based upon the evidence that plaintiff was suffering an aggravation of a pre-existing degenerative condition and that the economic proof was based upon an expected 35 hour work week, when the local steamfitter vice president testified plaintiff would be lucky to work 1700 hours per year. Zimnoch v. Bridge View Ellis, ____ AD3d _____ (2nd Dept. 01/26/10) After a trial, the jury returned a verdict in favor of the plaintiff on his section 240(1) claim, awarding $154,000 for past medical expenses and $1.5 million for future medical expenses, but nothing for pain and suffering. The trial judge set the verdict aside and ordered a new trial on damages, a decision which was affirmed by the Appellate Division. The second jury verdict resulted in $300,000 for past pain and suffering, $850,000 for future pain and suffering, $44,000 for past medical expenses and $364,000 for future medical expenses. The Appellate Court set aside the pain and suffering award, stating it materially deviates from what is reasonable and ordered a new trial on those aspects of the damages, unless plaintiff agreed to $150,000 for past pain and suffering, and $300,000 for future pain and suffering. Gallagher v. Levien, ____ AD3d ____ (1st Dept. 04/01/10) Plaintiff alleges he picked up a piece of plywood and partially fell, with one foot going into a hole and the

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other remaining at ground level. He described the opening as being 3 feet by 4 feey’ wide and 10 to 15 feet deep. On the summary judgment motions, defendant’s assistant superintendent, who arrived minutes after the accident occurred, described the hole as 2 feet x 14 inches across, and 2 to 3 feet deep, and stated that the plywood was secured and properly marked. These conflicting versions created a question of fact on both the section 240(1) claim and the 241(6) claim premised upon 23-1.7(b)(1), hazardous openings. Francescon v. Gucci America, ____ AD3d ____ (1st Dept. 3/18/10) The Court allowed plaintiff to amend his bill of particulars and add violations of two additional Industrial Code rules after the Note of Issue was filed, and 8 ½ years after the accident occurred, upon a finding that defendant would not be prejudiced by the amendment. Additionally, the Court allowed a belated expert disclosure determining his opinions did not assert a new theory of causation.

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