In Meabon v. Poland v. Chapman, (4th Dept., July 19, 2013), the Appellate Division Fourth Department reversed the trial court's decision and granted summary judgment to dismiss the third party complaint against plaintiff's employer. The claim arose when plaintiff, an employee of the third party defendant, slipped and fell from the roof of the barn he was building for defendant. Worker's Compensation Law section 11 prohibits a third-party action against an employer unless the plaintiff suffered a grave injury or there is a written contract entered into prior to the accident by which the employer expressly agrees to contribution or indemnification of the third party plaintiff. The issue in the case was whether a contract executed by the employer subsequent to the accident could be applied retroactively. The Court held that although the parties left blank the date the contract was "made," the employer met its burden to prove the contract was executed after the date of the accident, and the language of the contract clearly indicated that the parties did not intend for it to apply retroactively.

In Custer v. Jordan, 107 A.D.3d 1555 (4th Dept., June 14, 2013), the plaintiff brought claims against two defendants pursuant to the Labor Law and theories of common law negligence alleging he was injured while installing siding on a single-family home. The defendant, who had executed a contract for sale of the property but had not yet transferred title, moved for summary judgment to dismiss the claims against him on the grounds that he was not an owner, or in the alternative, that he was not subject to strict liability pursuant to Labor Law 240(1) because he was entitled to an exemption as the owner of a one or two-family dwelling.

The Appellate Division Fourth Department held that this defendant satisfied the requirements of an "owner" for the purposes of Labor Law section 240(1) when, although there was a contract for the sale of the home, the defendant retained title to the property at the time of the accident, was receiving payments from the buyer, and had not yet delivered the deed to the buyer. Further, the Court found the required nexus between the defendant property owner and the worker existed because, per the terms of the purchase contract, the buyer, who had contracted for the work performed, needed to notify the defendant-owner of any work contracted out with respect to the property and provide the defendant-owner with a certificate of insurance before any work was commenced.

The Appellate Division further held that the movant was not entitled to an exemption for owners of one and two-family dwellings pursuant to Labor Law 240(1) because the availability of that exemption does not apply universally to all owners. Here, the Appellate Division determined that defendant was not entitled to the exemption because defendant never lived in the home at issue and derived a commercial benefit from the property.

In Nicometi v. Vineyards of Fredonia, LLC, 107 A.D.3d 1537 (4th Dept., June 14, 2013), the plaintiff brought claims against defendants under Labor Law 240 and theories of common law negligence alleging he was injured while installing insulation in the ceiling when he slipped on ice and fell from his stilts. The defendant moved for summary judgment on the ground that plaintiff's fall was not the result of an elevation-related risk for which Labor Law 240(1) provides protection. The Appellate Division Fourth Department held that summary judgment for defendant was inappropriate because Labor Law 240(1) is intended to protect against hazards related to the effects of gravity where protective devices are called for. The Court found that a hazard was created by requiring plaintiff to work on the ceiling and that the stilts were the safety device provided.

In Utica Mutual Ins. Co. v. Erie Ins. Co., 107 A.D.3d 1522 (4th Dept., June 14, 2013), the Appellate Division Fourth Department interpreted insurance contracts in order to determine the priority of insurance coverage for injuries sustained in an underlying negligence action. In the underlying personal injury lawsuit, the plaintiff was injured while attending an automobile auction at Expressway Auto Auction, a premises insured by Utica. Plaintiff was injured by a vehicle at the auction that was owned by Twin Tier Auto Transport and insured by Erie. At the time of the accident, an employee of Expressway was driving the vehicle owned by Twin Tier with Twin Tier's permission.

The central issue on appeal was whether Erie was a primary insurer rather than a co-excess insurer with Utica. The Court looked to the relevant language in the Erie policy: "If an owned auto is being used in the course of your garage operations, this policy will provide excess insurance over all other available insurance coverage." The Appellate Division concluded that this language in the contract was not ambiguous because both "your" and "garage operations" were defined in the policy. Consequently, the Appellate Division reversed the trial court's decision that the language was ambiguous because the phrase "your garage operations" was not defined separately.

After determining that both policies purported to be excess to the other with respect to plaintiff's injuries, the Court held that the excess coverage clauses cancelled each other out and each insurer was required to contribute in proportion to its policy limit.

In Bellreng v. Sicoli & Massaro, Inc., (4th Dept. July 5, 2013), plaintiff brought claims under the Labor Law §§ 200, 240, 241 and theories of common law negligence for injuries he sustained when he fell through deteriorated roof decking onto scaffolding that had been erected inside the building to prevent falling debris. The Court considered several issues on appeal.

Defendant Sicoli & Masaro Inc. was the general contractor on the project. Sicoli entered into a subcontract with third party defendant Guard Contracting Co. to remove the existing roof. Guard subcontracted with Innovative Insulation Systems Inc., the fourth party defendant, to perform the roof-removal work. Plaintiff was an employee of Innovative Insulation.

A. ROOF DECKING IS NOT SCAFOLDING FOR PURPOSES OF LABOR LAW § 240(3).

The Court affirmed the trial court's grant of Defendant Sicoli's motion for summary judgment dismissing the Labor Law § 240(3) cause of action. Section 240(3) requires all scaffolding to be constructed to be able to bear four times the maximum weight required. The Court held that this section did not apply because the roof decking through which plaintiff fell was not a scaffold.

B. QUESTION OF FACT EXISTED ON PROXIMATE CAUSE OF FALL PRECLUDING SUMMARY JUDGMENT WHEN PLAINTIFF DISCONNECTED FROM LIFELINE WHILE TRAVELLING TO NEW WORK AREA.

The Court affirmed the trial court's denial of both Defendant's motion and Plaintiff's cross motion for summary judgment with respect to Labor Law § 240(1). Labor Law § 240(1) requires an owner to provide appropriate safety devices at an elevated work site. The Court held that on his motion plaintiff met his burden to show that the owner or contractor failed to provide appropriate safety devices at an elevated work site. Plaintiff presented his deposition testimony where he stated that although he had been connected to a steel lifeline where he fell, he had disconnected it because he was moving to a new work area and could not reach that work area while connected to the lifeline. However, the Court found that plaintiff failed to meet his burden with respect to whether the violation of the statute was the proximate cause of his injuries because plaintiff's submissions raised triable issues of fact as to whether his own actions in disconnecting the lifelines were the proximate cause of his fall.

With respect to defendant's motion, the Court held that defendants failed to meet their burden by failing to establish that plaintiff knew or should have known that he was expected to use the provided retractable lanyards or safety ropes in order to reach all areas of the roof.

C. SUMMARY JUDGMENT NOT APPROPRIATE UNDER LABOR LAW § 241(6) WHEN SAFETY DEVICES PROVIDED FAILED TO PROVIDE ACCESS TO ENTIRE WORK AREA.

The Court next affirmed the trial court's denial of Defendant's motion with respect to Labor Law § 241(6) based on a violation of 12 NYCRR 23-1.16(b). 12 NYCRR 23-1.16(b) requires employees to use safety belts provided. The Court concluded that 12 NYCRR 23-1.16(b) applied to the facts of the case and reasoned that even though plaintiff was not attached to the lifeline at the time of the fall, the safety devices supplied to him were inadequate for plaintiff to complete his work because they did not provide access to the entire roof.

D. CLAIMS UNDER LABOR LAW § 200 AND NEGLIGENCE DISMISSED BECAUSE MONITORING OF TIMING AND QUALITY OF WORK DOES NOT QUALIFY AS SUPERVISION AND CONTROL.

The Court reversed the trial court's denial of defendant's motion for summary judgment with respect to the claims under Labor Law § 200 and common law negligence based on defendants' lack of supervision and control over plaintiff. The Court held that the defendants, at most, engaged in monitoring and oversight of the timing and quality of work which is insufficient to raise a triable issue of fact as to supervision and control for purposes of Labor Law § 200 and common law negligence causes of action.

Consequently, the Court also reversed the trial court's decision and granted defendant's motion for summary judgment with respect to the third-party complaint for contractual indemnification on the Labor Law § 200 and common law negligence grounds because the Court determined that defendants were not negligent as to those causes of action. Additionally the Court held that the indemnification provision of the contract evinced a clear intent for the third-party defendant to indemnify the fourth-party defendant no matter who ultimately performed the work in question.

E. SUMMARY JUDGMENT NOT APPROPRIATE FOR THIRD PARTY DEFENDANT ON CONTRACUAL INDEMNIFICATION ISSUE WHEN QUESTIONS OF FACT REMAINED REGARDING NEGLIGENCE OF FOURTH PARTY DEFENDANT.

Finally the Court affirmed the trial court's denial of defendant's motion for partial summary judgment on another contractual indemnification cause of action against the third-party defendant finding questions of fact as to whether the fourth-party defendant was negligent. The Court reasoned that the indemnification provision clearly provided for indemnification only for damages that were caused by the negligent acts or omissions of the fourth-party defendant or its subcontractors.

Prepared by Martha E. Donovan