Traub Lieberman Straus & Shrewsberry LLP Partner Lisa J. Black was retained solely to argue the appeal on behalf of a plumbing subcontractor, in a suit where plaintiff alleged violations of Labor Law §§ 240(1), 241(6) and §200/common-law negligence. The Second Department case, Palomeque v. Capital Improvement Servs., LLC, 145 A.D.3d 912, 43 N.Y.S.3d 483 (2d Dep’t 2016), involved an electrician who was allegedly injured when he was struck in head with a pipe while working at a construction site. An employee of the plumbing subcontractor testified to hitting plaintiff in the head while descending from a ladder with the pipe in hand.
The Supreme Court had previously denied the subcontractor’s motion for summary judgment seeking dismissal of the Labor Law claims. On appeal, Ms. Black argued that the alleged action of the plumbing subcontractor’s employee could not form the basis for Labor Law liability as the injury was not a direct consequence of the application of the force of gravity to an object or person. The evidence showed that the pipe at issue which allegedly struck the plaintiff was secured in the hands of the plumbing subcontractor employee, when he turned his body in unison with the pipe and impacted the plaintiff laterally. Ms. Black argued for reversal and dismissal of the Labor Law §240(1) claim as no liability exists where a plaintiff is injured as the result of the lateral or horizontal movement of materials of equipment.
Additionally, Ms. Black established further grounds for reversal arguing that the alleged facts could not be basis for liability under Labor Law §241(6) because there was no evidence to prove a hardhat violation pursuant to 12 NYCRR 23-1.8(c)(1) as alleged by Plaintiff and the subcontractor responsible for the plumbing work at the premises did not supervise or control other subcontractors or trades on the site.
The Supreme Court, Appellate Division, agreed, reversed the lower court, and dismissed all of plaintiff’s Labor Law claims. Click here for a link to the decision.