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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2004 NY Slip Op 24170
Regular Panel Decision
May 07, 2004

Kennedy v. Pine Hill Coffee Serv.

Gerald Kennedy, an employee of Sahlem's Roofing, was injured on February 5, 2001, while replacing a roof on a commercial building owned by James DeMarco and occupied by Pine Hill Coffee Services, Inc. Kennedy fell about 9-10 feet due to the defendants' failure to provide adequate safety equipment. Plaintiffs moved for partial summary judgment under Labor Law § 240 (1), asserting absolute liability. Defendants argued Kennedy was a recalcitrant worker and that a co-employee, Dorian, served as a 'safety device,' and Kennedy's failure to wait for Dorian caused the accident. The court, however, ruled that a co-employee cannot be considered a 'safety device' under Labor Law § 240 (1) and that worker negligence is irrelevant for absolute liability. The court found that the absence of a safety device was the proximate cause of Kennedy's injuries, thus granting the plaintiffs' motion for partial summary judgment.

Labor Law § 240(1)Absolute liabilitySafety devicesElevation-related hazardRecalcitrant worker defenseProximate causePartial summary judgmentRoofing accidentCo-employee as safety deviceStatutory interpretation
References
7
Case No. MISSING
Regular Panel Decision

Kennedy v. Pine Hill Coffee Service, Inc.

Gerald Kennedy, an employee of Sahlem’s Roofing, sustained injuries after falling from a roof while working on a building owned by defendant James DeMarco and occupied by Pine Hill Coffee Services, Inc. Plaintiffs moved for partial summary judgment, arguing a violation of Labor Law § 240 (1) due to the defendants' failure to provide adequate safety equipment. Defendants contended that a co-employee acting as a 'spotter' constituted a safety device and that Kennedy was a recalcitrant worker for continuing to work when the 'spotter' left. The court rejected the argument that a human 'spotter' is a safety device under Labor Law § 240 (1), emphasizing the requirement for physical safety devices. Finding that the absence of proper safety devices was the proximate cause of Kennedy’s injuries, the court granted the plaintiffs' motion for partial summary judgment.

Labor Lawabsolute liabilityconstruction accidentfall from heightsafety devicesrecalcitrant workerproximate causeNew York Lawsummary judgmentowner liability
References
7
Case No. MISSING
Regular Panel Decision

Desrosiers v. Barry, Bette & Led Duke, Inc.

Plaintiff James Desrosiers sustained serious personal injuries after falling from a building roof under construction because his safety belt was not attached. He commenced an action against the building owner, Barry, Bette & Led Duke, Inc. (BBLD), alleging common-law negligence and violations of Labor Law §§ 200, 240, and 241, with his wife also pursuing a derivative claim. BBLD then initiated a third-party action against Desrosiers' employer, Burt Crane & Rigging Inc., seeking contractual and common-law indemnification. The Supreme Court granted the plaintiffs' motion for partial summary judgment on Labor Law § 240 (1) liability but denied BBLD's cross-motion for indemnification. On appeal, the court affirmed the finding of absolute liability under Labor Law § 240 (1) against BBLD, emphasizing the failure to provide adequate safety devices. The appellate court reversed the denial of BBLD's cross-motion, granting summary judgment for contractual indemnification against Burt Crane, reasoning that Burt Crane's failure to provide effective safety devices was the proximate cause of the injuries.

Personal InjuryConstruction AccidentLabor Law § 240Absolute LiabilitySummary JudgmentContractual IndemnificationThird-Party ActionSafety DevicesElevated Work SiteContributory Negligence
References
15
Case No. 2015 NY Slip Op 07571 [133 AD3d 87]
Regular Panel Decision
Oct 15, 2015

Quinones v. Olmstead Props., Inc.

Pedro Quinones, an employee of North Shore Neon Sign, was injured while painting graffiti on a billboard leased by Fuel Outdoor, LLC. He fell from concrete blocks, having reportedly forgone available safety equipment like a cherry picker, ladders, and a safety harness, which he claimed were inadequate due to site conditions. The Supreme Court initially granted Quinones partial summary judgment on his Labor Law § 240 (1) claim, asserting a failure to provide proper safety devices. However, the Appellate Division, First Department, reversed this decision, finding conflicting evidence regarding the adequacy of the safety devices and whether Quinones' actions were the sole proximate cause of his injuries, thereby necessitating a trial. The dissenting opinion argued that Fuel's expert failed to adequately counter Quinones' claims of device inadequacy.

Labor Law § 240(1)Summary JudgmentFall from heightSafety devicesSole proximate causeAppellate DivisionWorker injuryBillboard maintenanceConstruction accidentElevation risk
References
14
Case No. MISSING
Regular Panel Decision

Gallagher v. New York Post

Hugh Gallagher, an ironworker, sustained injuries after falling through an uncovered opening at a work site owned by NYP Holdings, Inc., while cutting metal decking. He and his wife sued NYP, alleging violations of Labor Law §§ 200, 240 (1), and 241 (6), specifically failure to provide safety devices. NYP contended that safety devices were available and that Gallagher's premature return to work after a prior injury was the sole proximate cause of his fall. The Supreme Court and Appellate Division initially denied summary judgment for plaintiffs, citing factual disputes regarding device availability and Gallagher's conduct. However, the Court of Appeals reversed, finding plaintiffs made a prima facie showing of a Labor Law § 240 (1) violation, and NYP failed to demonstrate that Gallagher knew of available safety devices and unreasonably chose not to use them, or that his prior injury was the sole proximate cause. The Court of Appeals granted plaintiffs' motion for partial summary judgment on liability.

Ironworker injuryConstruction accidentFall from heightLabor Law § 240 (1)Scaffolding LawSafety devicesProximate causeSummary judgmentAppellate reviewPersonal injury
References
5
Case No. MISSING
Regular Panel Decision
Jul 10, 1992

Singh v. Barrett

Plaintiff, an employee of Jimco Restoration Corporation, was injured on August 8, 1990, while performing restoration work that involved removing a second floor at 102 Charles Street in Manhattan. He fell to the floor below when a supporting joist gave way. The plaintiff filed a motion for summary judgment, arguing absolute liability under Labor Law § 240 (1) for failure to provide proper safety devices. The defendant owner opposed, claiming the plaintiff refused to use available safety equipment, citing an unsworn accident report. The Supreme Court denied the plaintiff's motion, finding an issue of fact. On appeal, the Appellate Division reversed the lower court's decision, granting the plaintiff's motion for summary judgment on liability. The appellate court ruled that the doctrine of refusal to use safety devices was inapplicable as there was no proof that properly constructed, placed, and operated safety devices were provided. The court also affirmed that Labor Law § 240 (1) applied to the work due to the elevation-related hazards created by floor removal.

Labor Law Section 240 (1)Absolute LiabilitySummary JudgmentSafety DevicesConstruction AccidentFall from HeightWorker InjuryAppellate ReviewDuty to Provide Safety EquipmentRefusal to Use Safety Devices
References
8
Case No. 34 SSM 30
Regular Panel Decision
Feb 18, 2020

Waldemar Biaca-Neto v. Boston Road II Housing Development Fund Corporation

Plaintiff Waldemar Biaca-Neto sustained injuries after falling from a scaffold while attempting to enter a building through a window cutout. Defendants, including Mountco Construction and Development Corp., sought summary judgment, arguing plaintiff's failure to use available safety devices was the sole proximate cause of his injuries under Labor Law § 240 (1). The New York Court of Appeals determined that a triable issue of fact existed regarding whether plaintiff knew he was expected to use the safety devices, considering an alleged "accepted practice" of entering through window cut-outs. The Court modified the Appellate Division's order, denying defendants' motion for summary judgment on the Labor Law § 240 (1) and related loss of consortium claims, and affirmed as modified. A dissenting opinion contended that plaintiff's own negligence, in choosing convenience over safety despite available devices, was the sole proximate cause.

Scaffolding accidentConstruction worker injuryLabor Law § 240(1)Sole proximate causeSummary judgment motionTriable issue of factWorker safety devicesLoss of consortiumAppellate reviewNew York Court of Appeals
References
6
Case No. 2015-07-0335
Regular Panel Decision
Mar 09, 2016

Stambaugh, Mark v. Simon Roofing Company

Mark Stambaugh, a roofer for Simon Roofing Company, filed a Request for Expedited Hearing seeking medical and temporary disability benefits for injuries sustained from a fall off a ladder. The employer, Simon Roofing, and its insurer, Liberty Mutual Insurance, argued that Stambaugh's claim was barred due to willful misconduct, willful failure to use a safety device, and/or intoxication. The Court found that Stambaugh's injuries arose primarily out of and in the course of his employment. However, the Court ultimately found Stambaugh's testimony not credible and concluded that Simon Roofing successfully established the affirmative defenses of willful misconduct and willful failure to use a safety device. Consequently, Mr. Stambaugh's request for medical and temporary disability benefits was denied.

Workers' CompensationExpedited HearingFall ProtectionLadder SafetyWillful MisconductSafety DeviceIntoxication DefenseDrug PolicyCredibilityEmployee Injury
References
4
Case No. MISSING
Regular Panel Decision

Arey v. M. Dunn, Inc.

Plaintiff Gerald Arey, a carpentry subcontractor, was injured when he fell from a roof during construction in a residential subdivision. He and his wife initiated an action against the property owner, M. Dunn, Inc., and contractors, Homeland Development Corporation and Peter Belmonte Builders, Inc., alleging a violation of Labor Law § 240 (1) for failure to provide adequate safety devices. The Supreme Court granted the plaintiffs' motion for partial summary judgment, a decision subsequently appealed by the defendants. Defendants contended that Arey was an employer and therefore not entitled to Labor Law protections, and attempted to assert contributory negligence and the recalcitrant worker defense. The appellate court affirmed the Supreme Court's ruling, concluding that the defendants failed to provide mandated safety devices, that contributory negligence is not a valid defense, and that the recalcitrant worker defense was inapplicable due to the absence of available safety devices at the site. The court underscored the nondelegable duty of owners and contractors under Labor Law § 240 (1).

Labor Law § 240 (1)Fall ProtectionConstruction AccidentPartial Summary JudgmentRecalcitrant Worker DefenseContributory NegligenceNondelegable DutySubcontractor InjuryAppellate AffirmationSafety Devices
References
10
Case No. MISSING
Regular Panel Decision

Garhartt v. Niagara Mohawk Power Corp.

Plaintiff, a laborer, was injured after falling approximately 20 feet from a boiler in the defendant's power plant. He had temporarily removed his provided safety belt to change a light bulb and subsequently lost his balance, sustaining serious injuries. Plaintiff commenced an action under Labor Law §240(1), arguing that the safety devices were insufficient, and initially secured a partial summary judgment on liability. However, the defendant appealed, contending that adequate safety equipment was provided and the plaintiff's failure to use it was the sole proximate cause of the fall. The appellate court reversed the summary judgment, ruling that a factual question exists regarding the suitability of the safety device, thus requiring a trial resolution by a jury.

Workplace SafetyFall from HeightLabor LawStatutory DutyContributory NegligenceProximate CauseSummary JudgmentAppellate ReviewSafety EquipmentWorker Injury
References
6
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