Brian J. Shoot

Two years ago, I noted in these pages that 3 to 2 rulings in the Appellate Division can be illuminating. Brian J. Shoot, “First Department’s 3-2 Rulings: Fault Lines of the Law,” NYLJ, May 3, 2016. Of course, one thing about virtually any 3 to 2 ruling is that, on a different day with a differently constituted panel, the ruling might have been 2 to 3. For this reason, one may hesitate to ascribe too much significance to such a ruling, at least until it recurs.

But, as I wrote back then, 3 to 2 rulings also reveal the fault lines in the law—the boundaries at which reasonable people can disagree.

With that as a prologue, I today consider four rulings that were rendered over Appellate Division dissents, including one 4 to 1 ruling that was afterwards affirmed by the Court of Appeals.

Fabricating Components, Miles Away From the Construction Site

It is not uncommon for work on a construction/demolition project to extend beyond the bounds of the site. The accident may, for example, occur in the public street, while the driver of a cement truck is preparing the cement. D’Alto v. 22-24 129th St., 76 A.D.3d 503, 505-06 (2d Dep’t 2010). In such instances it is settled law that the protections of Labor Law §§240 and 241(6) can extend beyond the bounds of the site. Simoes v. City of New York, 81 A.D.3d 514, 515 (1st Dep’t 2011); McGuinness v. Hertz, 15 A.D.3d 160, 161 (1st Dep’t 2005); Lucas v. KD Dev. Const., 300 A.D.2d 634 (2d Dep’t 2002); see also Shields v. Gen. Elec. Co., 3 A.D.3d 715, 717 (3d Dep’t 2004).

But what if the accident occurs way off-site? More specifically, what if the plaintiff is injured in the Bronx while fabricating steel rebars for a construction site in Tribeca (Manhattan)?

The First Department had a fact pattern like that some years back in Flores v. ERC Holding, 87 A.D.3d 419 (1st Dep’t 2011). The Flores court unanimously ruled that “fabricating and transporting materials to be used in connection with ongoing work at a construction site” was different from “working at a construction site for purposes of Labor Law §241(6)” and that Labor Law §241(6) was therefore inapplicable. In reaching that conclusion, the Flores court observed that the construction site owner “did not own and there is no evidence that [it] controlled the [Bronx] storage yard in any manner.”

Let’s now skip to last year’s First Department ruling in Gerrish v. 56 Leonard, 147 A.D.3d 511 (1st Dep’t 2017), aff’d 30 N.Y.3d 1125 (2018). Essentially, we have Flores all over again, with one factual distinction (apart, that is, from the fact that the building under construction in Gerrish was in Manhattan rather than Queens). Whereas the parties that hired the plaintiff’s employer in Flores had no control over the off-site facility in the Bronx, the off-site facility in Gerrish had been provided to the plaintiff’s employer by the contractor that had hired the plaintiff’s employer. Moreover, that contractor-hirer had contractually agreed that it would not use the Bronx facility for any purpose other than the Manhattan construction project. Was that enough to bring the plaintiff’s Bronx accident within the bounds of Labor Law §241(6)?

The First Department split 4 to 1. The majority deemed Flores “distinguishable” because there was here “a closer nexus” between the Labor Law defendants (who were the owner of the Manhattan building site and its construction manager) and “the leasing of the Bronx Yard” where the off-site work occurred. The majority added that there was, in its view, “no set distance which would automatically include or exclude applicability of Labor Law §241(6).”

The Gerrish majority accordingly ruled there was “a question of fact as to the property owner and construction manager’s involvement with the off-site temporary facilities.” In so holding, the court did not say what, exactly, the “question of fact” was. Was the plaintiff obligated to show that defendants in fact exercised control over the Bronx site or that they could have exercised control over the site? Or was it sufficient to show that the contractor which hired plaintiff’s employer exercised control or could have exercised control over the work? The court did not say.

In contrast, the dissent would have deemed the statute inapplicable as a matter of law. In its view, Flores controlled and the “expansion of liability” wrought by the majority was “not justified by the terms of the contract, the statutory scheme of that statute, or the facts of the [sic] case.”

The Court of Appeals unanimously affirmed on abbreviated 500.11 review (no oral argument, letter briefs), but it did so in a single paragraph which said very little. Focusing on the fact that the appeal had arisen from a CPLR §3211 motion to dismiss rather than a CPLR §3212 motion for summary judgment, the court said only that “defendants’ documentary evidence does not establish, as a matter of law, that the work site where plaintiff’s injury occurred was not a construction area in accordance with Labor Law §241(6).”

Arrival at the ‘Work Site,’ Sort Of

The owner and/or general contractor required all of the workers engaged in a renovation project to enter the building each day by way of “an elevated loading dock” and there obtain an entry pass. Due to the throng of assembled workers, plaintiff fell from the dock. The loading dock “was approximately four feet off the ground [and] had no guardrails, chain, rope, or other indication where its platform ended and the ledge began.”

At the time he fell, plaintiff, a painter, had obviously not started painting and had not reached the floor where he would be painting. Did that matter for purposes of Labor Law §240? Assuming it did not, was the fall itself, from an approximately four-foot high loading dock, sufficiently “elevated” to trigger the statute’s protections? The case was Hoyos v. NY-1095 Ave. of the Americas, LLC, 156 A.D.3d 491 (1st Dep’t 2017) and the court split 3 to 2 on the first question and 4 to 1 on the second. In each instance, the majority sided with the plaintiff.

Regarding the “work site” issue, the majority ruled that the protections of Labor Law §240 apply throughout the “job site” even if the accident “occur[s] at a time when the plaintiff is not, or no longer, directly involved in the enumerated work” and even if “plaintiff was in the process of entering the building, but had not yet physically begun painting.” It charged that the dissent’s narrower view “ignores the reality of what construction workers employed on projects in high rise buildings face.”

The Hoyos majority noted that this was “not a situation where the plaintiff was injured after he had already completed an enumerated activity” or “where the task was not an enumerated activity.” The majority emphasized that “at the time of the accident, plaintiff was entering the building and reporting to the construction site through the only means of access the owner made available to him.” In these circumstances, if coverage were confined to the part of the building in which plaintiff was painting, such would “place an unintended limitation on Labor Law §240(1)” which was inconsistent with prior rulings, or so the majority felt.

The dissent would have deemed plaintiff beyond the scope of the statute since he “had not yet begun his work and was not physically on the construction site.” In its view, “the work site was only on floors 13-20 and 40-41 where construction work was being performed in the building.” That plaintiff had been required to use the loading dock entrance was immaterial inasmuch as “in no reading of the section could a worker merely waiting to sign into a building be found to be engaged in an enumerated activity” and “plaintiff was not even working at the time of his fall.”

The Ladder Wobbled

There are any number of cases which hold that the mere fact that the worker fell from a ladder does not establish liability under Labor Law §240 inasmuch as such an accident can occur on a perfectly fine and stable ladder. Wolfe v. Wayne-Dalton, 133 A.D.3d 1281, 1283 (4th Dep’t 2015); Karanikolas v. Elias Taverna, 120 A.D.3d 552 (2d Dep’t 2014); Hugo v. Sarantakos, 108 A.D.3d 744 (2d Dep’t 2013). The worker may have just lost her balance, perhaps because she was ascending with a cup of coffee in one hand and a donut in the other.

There are also any number of cases that hold that the plaintiff makes out a prima facie case under the statute by showing that he fell because the ladder moved and thus caused the plaintiff to fall. Plywacz v. 85 Broad St., 159 A.D.3d 543 (1st Dep’t 2018); Merino v. Cont. Towers Condominium, 159 A.D.3d 471 (1st Dep’t 2018); Rom v. Eurostruct, 158 A.D.3d 570 (1st Dep’t 2018); Cano v. Mid-Val. Oil Co., 151 A.D.3d 685, 690 (2d Dep’t 2017); Alvarez v. Vingsan Ltd. Partnership, 150 A.D.3d 1177, 1178 (2d Dep’t 2017); Messina v. City of New York, 148 A.D.3d 493, 494 (1st Dep’t 2017); Fletcher v. Brookfield Properties, 145 A.D.3d 434, 434 (1st Dep’t 2016); Hai-Zhong Pang v. LNK Best Group, 111 A.D.3d 889, 889 (2d Dep’t 2013); Goreczny v. 16 Ct. St. Owner, 110 A.D.3d 465, 465 (1st Dep’t 2013). And there have been many cases in which the courts have said that such is true even where the ladder wobbled or shifted because the plaintiff himself failed to properly secure it. Klein v. City of New York, 89 N.Y.2d 833, 834-35 (1996); Baugh v. New York City School Const. Auth., 140 A.D.3d 1104, 1105 (2d Dep’t 2016); Wicks v. Leemilt’s Petroleum, 103 A.D.3d 793, 794-95 (2d Dep’t 2013); Grant v. City of New York, 109 A.D.3d 961, 962-63 (2d Dep’t 2013); Canas v. Harbour at Blue Point Home Owners Ass’n, 99 A.D.3d 962, 963-64 (2d Dep’t 2012); McCaffery v. Wright & Co. Const., 71 A.D.3d 842, 843 (2d Dep’t 2010); but see Wadlow v. Wadlow, 26 A.D.3d 747, 749 (4th Dep’t 2006).

So, what if plaintiff proves that he fell from a ladder because it wobbled … but fails to show why it wobbled? And what if the plaintiff concedes that “he might not have checked the positioning of the ladder or the locking mechanism, despite having been aware of the need to do so”? Such was the situation in Bonczar v. Am. Multi-Cinema, 158 A.D.3d 1114 (4th Dep’t 2018).

The Fourth Department split 3 to 2. The majority, quoting the Court of Appeals’ decision in Blake v. Neighborhood Hous. Services of New York City, 1 N.Y.3d 280 (2003), ruled there was “‘a plausible view of the evidence—enough to raise a fact question—that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident.’” The memorandum decision was a paragraph long.

The dissent, which was a good deal longer, said, “[t]he fact that plaintiff could not identify why the ladder shifted does not undermine his entitlement to partial summary judgment” because, also citing and quoting Blake, “a ladder that ‘malfunction[s] for no apparent reason” gives rise to “‘a presumption that the ladder … was not good enough to afford proper protection.’” The dissent added that the majority’s reliance upon Blake, where it seemed fairly clear that the ladder retracted because plaintiff had failed to lock the extension clips, was “misplaced” inasmuch as “an A-frame ladder can wobble or shift for various reasons unrelated to its positioning or locking mechanism, and even for no apparent reason.”

Could the ruling have been different, perhaps 2 to 3 the other way, with a differently constituted panel? Of course, which is why these “fault line” cases are so interesting.

‘Secured for the Purposes of the Undertaking’

In the so-called “falling object” cases in which the worker is struck by an object that fell from above, when, precisely, does the failure to prevent that occurrence constitute a violation of Labor Law §241(6)?

Per the Court of Appeals’ ruling in Fabrizi v. 1095 Ave. of Americas, 22 N.Y.3d 658 (2014), the case comes within the ambit of the statute only if “at the time the object fell, it either was being ‘hoisted or secured’ … or ‘required securing for the purposes of the undertaking.’”

The first two categories do not pose much difficulty. Nor does the concept of “required securing.” Presumably, if the object fell and caused injury it “required securing.” But what did the court mean by “required securing for the purpose of the undertaking? More to the present point, what, exactly, is the pertinent “undertaking”? That question split a Fourth Department panel 3 to 2 in Robinson v. Spragues Washington Sq., 158 A.D.3d 1318 (4th Dep’t 2018).

The plaintiff in Robinson was attempting to install a door frame when a lintel that weighed 50 pounds fell and struck him. The lintel had been previously installed, apparently not very well, by another contractor.

We know from the Court of Appeals’ ruling in Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 268 (2001) that a pre-existing part of a building that is extrinsic to the entire construction/demolition project does not fall within the scope of the “undertaking.” Here, the lintel was part of the overall project. However, it was not part of the work undertaken by the plaintiff’s employer. Did that matter? It did to the two dissenters.

The dissenters would have deemed the statute inapplicable because, (1) “the lintel had previously been installed by another subcontractor, and plaintiff was not in any way involved in that installation,” (2) the lintel “had become part of the building’s permanent structure upon installation” (even though the lintel’s “permanent” installation was perhaps more theory than fact), and (3) whatever had been needed to keep the lintel aloft was not, in the dissenters’ view, a “safety device” within the meaning of the statute.

The majority agreed that the case would fall beyond the bounds of the statute if the lintel had already been permanently secured but felt there was an issue “whether the lintel was permanently secured to the building with mortar or temporarily installed on top of the doorframe.” More significantly, the majority concluded that it was irrelevant under the statute “whether the lintel was installed by plaintiff or by employees of another subcontractor.”

In other words, while the dissenters construed the “undertaking” to be the work undertaken by the plaintiff and his or her employer—in which event, the precarious stacking of concrete blocks directly over a place where workers were required to pass (to pose a more dramatic example) would presumably come within the statute only if the worker who was struck happened to work for the cement contractor that did the deed—the majority construed the “undertaking” to be the project as a whole.

Would the Court of Appeals agree if it were presented with that issue? If one could answer that question with certainty, Robinson would presumably not have been resolved with a 3 to 2 split.

Brian J. Shoot is a partner with the firm of Sullivan Papain Block McGrath & Cannavo. He is a member of the Advisory Committee on Civil Practice of the Office of Court Administration of the New York State Unified Court System, and of the American Academy of Appellate Lawyers.