Trial Court Dismisses New York Labor Law Suit in 20 Foot Fall
From Ladder Resulting in Brain Injury
December 27, 2005
HAWTHORNE, New York -- TRAUB EGLIN LIEBERMAN
STRAUS LLP (TELS) is pleased to announce that the Supreme
Court of the State of New York, County of Nassau dismissed
the case against the firm's client in its entirety with prejudice.
The case was significant in that it involved multi-million
dollar claims arising under New York's Labor Law. The Court
held that an employee's fall from a ladder, which prompted
the lawsuit in the first place, occurred during "routine
maintenance" and, as such, not subject to extraordinary
protections under New York's Labor Law.
The defendant in this case was Montauk Properties,
owner of a shopping center which included a store that had
been vacant for approximately 15 years. Montauk Properties
retained Regent Management to work as the property manager
for the development.
One of Regent's employees was trying to
stuff small pieces of insulation into three small cracks in
the wall of the vacant store. These pieces of insulation were
about the size of a standard Letter-size piece of paper. Neighboring
tenants had requested the insulation, since birds were getting
into their store from cracks in the wall.
On the very same day, several Regent employees
were working in the basement of the store dismantling a boiler.
Only six months before, the interior sheetrock walls of the
store had been removed.
The Regent employee used a 20 foot extension
ladder to install these paper-size pieces of insulation. He
placed the ladder against the wall below a crack near the
ceiling. After ascending the ladder, the bottom suddenly slid
away, causing the employee to fall nearly 20 feet, sustaining
severe injuries and brain damage.
The employee that fell eventually sued Montauk
Properties, asserting violations of New York State Labor Law
§240(1), §241(6) and §200, as well as common
law negligence. Upon closer examination of Regent's liability
coverage, Montauk qualified as an additional insured. Montauk
then commenced a third-party action against Regent seeking
contractual indemnification for any judgment above the carrier's
policy limit, which was $1 million.
Attorneys Robert
Leff and Denis Farrell of TELS were brought in to represent Regent Properties, and
immediately began to focus discovery to show that the plaintiff
was engaged in “routine maintenance,” and that
his activities were otherwise unconnected to the other alleged
alteration/renovation activities. New York Labor Law only
applies to the “erection, demolition, repairing, altering,
painting, cleaning or pointing of a building or structure.”
The Labor Law does not apply to “routine maintenance”
activities.
At the close of discovery, TELS moved for
summary judgment on behalf of the third-party defendant Regent,
seeking dismissal of the entire case. Mr. Leff and Mr. Farrell
argued that the plaintiff was engaged in “routine maintenance”
and as such, the protection of the Labor Law did not apply.
The Plaintiff cross-moved for summary judgment arguing that
plaintiff’s activities were part of a larger renovation
project that included “gutting” the store and
removing the boiler.
While the motion was pending, the plaintiff
made a policy limit demand from Regent's insurance carrier,
and sought additional funds from Montauk’s primary insurance
carrier. Montauk's insurer demanded that Regent's insurance
carrier settle the matter within its policy limit.
In the end, the trial Court granted Regent’s
motion dismissing the case in its entirety. In dismissing
the case, the Court noted that the Labor Law only applies
to the “erection, demolition, repairing, altering, painting,
cleaning or pointing of a building or structure.” The
Court determined that based on the evidence submitted, the
plaintiff was not engaged in any of these activities but was
performing “routine maintenance.”
The Court held that an application of a
small amount of insulation into a space with one’s hands
is not a significant physical change to the building’s
configuration or composition so as to constitute an alteration
under the Labor Law. As to the plaintiff’s argument
that his activities were part of a larger renovation project,
to the extent the store had been “gutted,” that
had occurred over six months prior to the accident and, thus,
had no connection to plaintiff’s activities on that
day.
In consideration of the boiler work going
on, the Court also ruled there was no evidence that the dismantling
of the boiler constituted an alteration or was otherwise connected
to plaintiff’s work on the day of the incident. Accordingly,
the Court found no connection between the alleged “larger”
alteration project and the plaintiff’s activities on
the day of the accident. The Labor Law §241(6) claim
was similarly dismissed as the plaintiff was not engaged in
“construction, demolition or excavation.” The
Labor Law §200 and negligence claims were also dismissed
as there was no evidence that Montauk supervised or controlled
the plaintiff’s work nor created the alleged dangerous
condition.
The decision is encouraging in that it arguably
demonstrates that the trend of restricting the reach of the
Labor Law as set forth in recent decisions of the New York
State Court of Appeals is having an impact at the trial level.
In appropriate cases, TELS believes summary judgment motions
should be made as such motions not only force a plaintiff
to lay bare their proof and thus enhance settlement positions,
but the motions can result in a complete dismissal in what
may otherwise be a policy limits case.
The case was James v. Montauk Properties,
LLC., et ano. (Court Index No. 6558/04)
TELS congratulates Robert Leff and Denis
Farrell for their diligent work on this case. For more information
on Mr. Leff, a partner with TELS, please visit:
http://www.tels.com/profiles/robertleff/
And for additional background on Mr. Farrell,
an associate with TELS, please click on:
http://www.tels.com/profiles/denisfarrell/
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