Home Committee Web Pages Premises Liability/Labor Law

PREMISES LIABILITY/LABOR LAW COMMITTEE

Chairperson

Glenn A. Monk, Esq.
Harrington, Ocko & Monk, LLP
84 Main Street, 2nd Floor
White Plains, New York 10601
914-686-4800/FAX (914) 686-4824
gmonk@homlegal.com

Case Summaries

LABOR LAW

GURYEV v TOMCHINSKY, 20 NY3d 194, 2012 WL 6115652 (2012) - The Tomchinsky defendants purchased a residential condominium unit in a 47 story condo building. Prior to moving in the Tomchinskys decided to renovate the premises. Pursuant to an alteration agreement they obtained approval to have work performed from the Condominium’s Board of Managers. The new unit owners then contracted with the plaintiff’s employer to perform the renovations. Plaintiff was injured while using a nail gun on the job. Plaintiff filed suit against the Tomchinskys, the Board, the Condo Corporation and the Managing Agent based on Labor Law §§ 241(6) and 200 theories. Affirming an order that dismissed that action against all the defendants with the exception of the unit owners, the Court determined that the dismissed parties: did not act as statutory agents for the unit owners; did not contract for the work; did not have any ownership interest in the unit; and, did not have the right to control the work, thus these parties could not be subject to liability under the Labor Law. Additionally, the Court pointed out that had the unit been a co-op the result would have been different since in that situation the co-op corporation retains ownership of the unit and thus would be subject to the statutes.

NUNEZ v CITY OF NEW YORK, 100 A.D. 3d 724, 954 NYS 2d 163 (2d Dept 2012) - In preparing for the removal of asbestos, plaintiff fell from a 10 foot A-frame ladder. In support of his motion for summary judgment on his Labor Law § 240 (1) claim plaintiff submitted 50-h hearing minutes and an affidavit from a co-worker that indicated that the ladder was opened and locked at the time of the accident and that he fell forward when he leaned over to place a plastic cover on to the wall. However, plaintiff also submitted unsworn affidavits from a supervisor and a co-worker that stated that the ladder was in a closed position and was propped against a wall when the accident occurred. Reversing an order that had granted plaintiff summary judgment, the Court found that the conflicting evidence created an issue of fact as to whether the ladder provided proper protection from an elevation-related risk and whether a violation of the statute was a proximate cause of the accident.

GONZALEZ v WOODBOURNE ABORETUM, INC., 100 A.D. 3d 694, 954 N.Y.S. 2d 113 (2d Dept. 2012) - In this Labor Law §§ 240(1), 241(6) case, plaintiff’s decedent, an employee of a landscaper, was asked to  serve as a “spotter” while two other men sought to move a “water cannon”, an irrigation device that weighed in excess of a ton, off 2 jacks so that they could replace a worn out, damaged rear axle. While plaintiff’s decedent served as a spotter the water cannon tipped over and killed him. The Court dismissed plaintiff’s Labor Law § 240(1) claim finding that the task being performed at the time of the accident constituted routine maintenance which is not work protected by the statute. The Court also dismissed plaintiff’s Labor Law § 241(6) claim because the work did not involve construction, demolition or excavation activity which are covered by the statute.

MCLEAN v 405 WEBSTER AVENUE ASSOCIATES, 98 A.D. 3d 1090, 951 N.Y.S. 2d 185(2d Dept. 2012) - Plaintiff was installing a protective housing for fiber optic cable in a dumbwaiter shaft. At the time of his accident he was standing in a dumbwaiter cart in the shaft when he was struck by the dumbwaiter’s counter weight. In evaluating plaintiff’s Labor Law § 240 (1) claim, the Court stated that the test in a falling object case is not limited to circumstances where the object falls while it is being hoisted or secured nor is it a prerequisite that the object  fell from a higher level than where plaintiff was working. It also pointed out that an object should be secured if the nature of the work being done posed a significant risk that the object would fall. In reviewing the evidence, the Court found that the nature of the work performed did not cause the object to fall rather it concluded that the cause was due to the defective condition of the ropes in the shaft. Moreover, it stated “where a falling object is not a foreseeable risk inherent in the work, no protective device pursuant to Labor Law § 240 (1) is required”. Upon these findings, the Court ruled that the defendant was entitled to summary judgment on its Labor Law § 240 (1) claim.

FABRIZI v 1095 AVENUE OF THE AMERICAS, 98 A.D. 3d 864, 951 N.Y.S. 2d 480(1^st Dept. 2012) - What is of particular interest in this Labor Law § 240 (1) case is not the spirited debate engaged in between the majority and the dissent but, rather the concurring opinion of J. Roman on whether “foreseeability” is or should be an element in evaluating whether a Labor Law § 240 (1) case can be established. A foreseeable risk is a “risk reasonably to be perceived”. According to J. Roman’s interpretation a particular hazard is not foreseeable if it can not reasonably be guarded against. His perception is that the concept of foreseeability has been considered “implicitly” by the courts. He cited various examples to support his position and noted that only in the permanent structure context has foreseeability been clearly considered an element in the evaluation of a Labor Law § 240 (1) case. He acknowledged that in a number of decisions that the element of foreseeability has explicitly been rejected in determining whether a Labor Law § 240 (1) exists. He opined that “Absent a foreseeability requirement then, we leave the owner and contractor with no reasonable way to determine when the statute applies and therefore, when they are required to provide the safety devices enumerated therein.” [also see “Considering Forseeability in Shaping Liability Under Labor Law” by: Brian Shoot, NYLJ 10/16/12 pp 3,7].

ZOLFAGHARI v HUGHES NETWORK, 99 A.D. 3d 1234, 952 N.Y.S. 2d 367 (4^th Dept. 2012) - The issue on this appeal was whether plaintiff was performing an alteration, an activity protected by Labor Law § 240(1), at the time of his accident. The basic facts were that plaintiff fell off a ladder while removing a satellite dish from the side of a gas station. The work entailed: unplugging a cord; loosening small bolts; cutting a wire with a hand tool; and, lifting the dish from its bracket. In evaluating the issue, the Court cited the well-settled definition of an alteration under Labor Law § 240(1) – “making a significant physical change to the configuration or composition of a building or structure”. The Court found that the work performed here fell shy of that standard and affirmed an order that dismissed plaintiff’s Labor Law § 240 (1) claim.

MENDEZ v JACKSON DEVELOPMENT GROUP, LTD, 99 A.D.3d 677, 951 N.Y.S. 2d 736 (2d Dept. 2012) - Plaintiff and a coworker were installing a plate glass window panel in a building that was under construction. Plaintiff was positioned on a ladder and his coworker was standing at ground level. When they lifted the glass it split in half and plaintiff was injured. In reversing an order that had denied the owner summary judgment on plaintiff’s Labor Law § 240(1) claim, the Court stated that “the plaintiff must show more than simply that an object fell causing injury to a worker (citation omitted).” Rather, plaintiff must establish that when the object fell it was “being hoisted or secured” or, “required securing for the purpose of the undertaking (citation omitted)” and that the object fell due to the absence or inadequacy of a safety device set forth in the statute. Finding that plaintiff did not meet this burden, the Court dismissed plaintiff’s Labor Law § 240(1) claim.

GENERAL NEGLIGENCE

HARDSOG v PRICE CHOPPER OPERATING CO. INC., 99 A.D.  3d 1130, 952 NYS2d 802 (3d Dept. 2012) - Plaintiff tripped on a chipped piece of tile in defendant’s store. The evidence established that the chip created a ¼ inch depression in the floor. Finding that the defect here was trivial the Court affirmed an order that granted defendant summary judgment.

THOMAS v NEW YORK CITY TRANSIT AUTHORITY, ___  A.D.3d ___, 2012 WL6178209 (2d Dept. 2012) - Plaintiff was exiting a bus during a snow storm when she slipped on a slushy bus step. Citing the “storm in progress” rule, the Court reversed an order of the lower court, which had denied the New York City Transit Authority summary judgment.

ARTEAGA v THE CITY OF NEW YORK, ___ A.D. 3d ____, 2012 WL 6050320 (1^st Dept. 2012) - Plaintiff was injured on a subway platform and sued the City. The Court here affirmed an order of the lower court, which had granted the City summary judgment. The Court noted that while the City owns the subway it leases it to the New York City Transit Authority which qualifies the City as an out-of-possession owner thus rendering the City not responsible for any negligence on the part of the New York City Transit Authority.  

SCHERER v GOLUB COPORATION, 100 A.D. 3d 1286, 2012 WL 6197987 (3d Dept. 2012) - Plaintiff slipped on a spilled bottle of steak sauce in defendant’s grocery store. The record showed that: a store employee promptly placed a grocery cart over the spill; the manager paged the janitor who responded immediately with a utility cart which displayed warning signs and a warning sign was placed on the floor. As this action was being taken, plaintiff managed to slip on the sauce. The Court found that: the time elapsed from the spill and the fall was less than 5 minutes; there was no evidence that the store created the condition; the store did not have sufficient notice of the condition; and, the store promptly took remedial action. Based on these facts the Court determined that defendant was entitled to summary judgment.

CATER v DOUBLE DOWN REALTY CORP., 101 A.D. 3d 506, 954 NYS 2d 877, (1^st Dept. 2012) - Plaintiff fell on a wet staircase in defendant’s building. Defendant’s motion for summary judgment was properly denied where defendant failed to produce evidence that it did not have constructive notice of a dangerous condition and was unable to offer any proof of when the staircase was inspected, cleaned or maintained prior to plaintiff’s accident.

VANDERLINDE v 600 West 183^rd STREET REALTY CORP,  955 A.D. 3d 516, 2012 WL 6620518 (1^st Dept. 2012) - Where the evidence demonstrated that defendant, landlord had installed a smoke detector in plaintiff’s apartment within a year before plaintiff’s apartment sustained fire damage and where plaintiff had failed to deliver written notice to the landlord of a defective smoke detector as required by NYC Admin Code § 27-2045 (a), the Court ruled that defendant did not owe plaintiff a duty to maintain, repair or replace the appliance.

D’ANTUONO v VILLAGE OF SAURGERTIES, 101 A.D. 3d 1331, 2012 WL 6199954 (3d Dept. 2012) - Plaintiff was injured while attempting to climb up a snow bank in defendant’s municipal parking lot. The Court found that the defendant could not be held liable because plaintiff failed to comply with the municipality’s written notice ordinance. The Court noted that there were two exceptions to the ordinance: if the municipality created a dangerous condition through an affirmative act of negligence; or, if the municipality had a special use that provided a benefit to the municipality. Since there was no evidence that either of these exceptions were involved, the Court dismissed plaintiff’s suit.

HUNTER v NEW YORK CITY DEPARTMENT OF EDUCATION, 95 N.Y. 3d 719, 945 N.Y.S. 2d 76 (2012) - Plaintiff, a second grade student was injured in class when another student who had been writing on a blackboard stepped back, tripped and fell on plaintiff. Plaintiff’s theory of liability was that the teacher negligently supervised the activity. The Court determined that the conduct of the student who stepped back was a spontaneous act that could not have been prevented by reasonable supervision. Therefore, the Court affirmed an order that had dismissed plaintiff’s action.

Prepared by Ken King, Esq. Hoey, King, Toker & Epstein