green
Positive treatment
Issue: recalcitrant worker defenseNY ↗
Issue: necessary factorsNY ↗
Issue: cause of action alleging violationNY ↗
26.5 score
G Cite
cited 2× by 2 distinct cases, last quoted 1999 ·
…a reasonable jury could have concluded that plaintiffs actions were the sole proximate cause of his injuries, and consequently that liability under labor law 240 (1) did not attach
✓
cited 2× by 2 distinct cases ·
…making a significant physical change to the configuration or composition of a building or structure
at p. 960
✓
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998
2012
2026
Top citers, strongest first. 50 distinct citers.
How cited ↗
cited
Cited as authority (rule)
Haywood v. Delta Airlines, Inc.
Weininger v. Hagedorn Co., 695 N.E.2d 709, 710 (N.Y. 1998).
discussed
Cited as authority (rule)
Logerfo v. JPMorgan Chase Bank, National Association
Weininger v. Hagedorn & Co., 695 N.E.2d 709, 710 (N.Y. 1998) (holding that “running computer and telephone cable” throughout office building was considered sufficiently signification alteration to building); see also Prats v. Port Auth. of N.Y. & N.J., 800 N.E.2d 351 , 353–54 (N.Y. 2003) (holding that plaintiff’s work inspecting and adjusting air conditioner units throughout office building were alterations that fell within the purview of NYLL § 240(1)).
discussed
Cited as authority (rule)
Barnhardt v. Richard G. Rosetti, LLC
Footnotes Footnote 1: The parties do not dispute that plaintiff's installation of wiring for the security cameras on the roof of the office space was a protected activity under Labor Law § 240 (1) ( see Weininger v Hagedorn & Co. , 91 NY2d 958, 959-960 [1998]).
cited
Cited as authority (rule)
Goncalves v. City of New York
City. , 1 NY3d 280, 290-291 [2003]; Weininger v Hagedorn & Co. , 91 NY2d 958, 960 [1998]).
cited
Cited as authority (rule)
Goncalves v. City of New York
City. , 1 NY3d 280, 290-291 [2003]; Weininger v Hagedorn & Co. , 91 NY2d 958, 960 [1998]).
discussed
Cited as authority (rule)
Emery v. Steinway, Inc.
The Court of Appeals found that this work "involved making a significant physical change to the configuration or composition of the building or structure, not a simple, routine activity," and thus held it to be an alteration within the purview of section 240(1) ( id. at 960 [internal quotation marks omitted]).
discussed
Cited as authority (rule)
Sochan v. Mueller
Weininger v Hagedorn & Co. , 91 NY2d 958, 959-960 [1998], rearg denied 92 NY2d 875 [1998]; Schick v 200 Blydenburgh, LLC , 88 AD3d 684, 686 [2d Dept 2011], lv dismissed 19 NY3d 876 [2012]), or repairing a building or structure ( see Cullen v AT & T, Inc. , 140 AD3d 1588, 1589-1590 [4th Dept 2016]).
discussed
Cited as authority (rule)
Albericci v. Port Authority of New York & New Jersey
Extending the statute to impose liability in such a case would be inconsistent with statutory goals since the accident was not caused by the absence of (or defect in) any safety device, or in the way the safety device was placed” (internal quotation marks omitted)]; Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998] [“Supreme Court erred, however, in directing a verdict in favor of plaintiff, at the close of his own case, on the issue of proximate cause.
discussed
Cited as authority (rule)
Somereve v. Plaza Construction Corp.
(2×)
Supreme Court thus erred when it granted plaintiff partial summary judgment on his Labor Law § 240 (1) claim since a “reasonable jury could have concluded that plaintiff’s actions were the sole proximate cause of his injuries, and consequently that liability under [section] 240 (1) did not attach” (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]).
discussed
Cited as authority (rule)
Bascombe v. West 44th Street Hotel, LLC
Ctr., LP, 6 NY3d 550, 554 [2006]; Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; Cioffi v Target Corp., 114 AD3d 897, 898 [2014]; Corchado v 5030 Broadway Props., LLC, 103 AD3d 768 , 768-769 [2013]).
discussed
Cited as authority (rule)
Gunderman v. Sure Connect Cable Installation, Inc.
Hence, our inquiry distills to whether the overall work that Gunderman was performing involved “ ‘making a significant physical change to the configuration or composition of [a] building or structure’ ” (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], quoting Joblon v Solow, 91 NY2d 457, 465 [1998]), thereby constituting an alteration (see Labor Law § 240 [1]; Belding v Verizon N.Y., Inc., 65 AD3d 414, 415 [2009], affd 14-NY3d 751 [2010]) or, alternatively, whether he was engaged in a “simple, routine activity” (Weininger v Hagedorn & Co., 91 NY2d at 960; see Smith v Pergamen…
discussed
Cited as authority (rule)
Gunderman v. Sure Connect Cable Installation, Inc.
Hence, our inquiry distills to whether the overall work that Gunderman was performing involved “ ‘making a significant physical change to the configuration or composition of [a] building or structure’ ” (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], quoting Joblon v Solow, 91 NY2d 457, 465 [1998]), thereby constituting an alteration (see Labor Law § 240 [1]; Belding v Verizon N.Y., Inc., 65 AD3d 414, 415 [2009], affd 14-NY3d 751 [2010]) or, alternatively, whether he was engaged in a “simple, routine activity” (Weininger v Hagedorn & Co., 91 NY2d at 960; see Smith v Pergamen…
discussed
Cited as authority (rule)
DeRosa v. Bovis Lend Lease LMB, Inc.
Finally, there is no plausible view of the evidence that plaintiffs own acts or omissions were the sole proximate cause of the accident (cf. Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; see also Vergara v SS 133 W. 21 , LLC, 21 AD3d 279, 281 [2005]).
discussed
Cited as authority (rule)
DeRosa v. Bovis Lend Lease LMB, Inc.
Finally, there is no plausible view of the evidence that plaintiffs own acts or omissions were the sole proximate cause of the accident (cf. Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; see also Vergara v SS 133 W. 21 , LLC, 21 AD3d 279, 281 [2005]).
discussed
Cited as authority (rule)
Randall v. Time Warner Cable, Inc.
Defendant concedes that the work done inside the subscriber’s home—involving running wiring into and through walls and drilling holes to accommodate the wiring—made sufficiently significant changes to constitute alteration of the structure (see Weininger v Hagedorn & Co., 91 NY2d 958, 959-960 [1998]; Smith v Pergament Enters, of S.I., 271 AD2d 870, 871 [2000]; compare Cooper v Time Warner Entertainment-Advance/Newhouse Partnership, 16 AD3d 1037, 1038 [2005]), but argues that the pertinent inquiry is “what type of work the plaintiff was performing at the time of injury” (Joblon v Solo…
discussed
Cited as authority (rule)
Gray v. City of New York
Summary judgment must be denied when factual questions remain regarding whether a plaintiff’s own actions were the sole proximate cause of the accident (see Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]; see also Blake v Neighborhood Hous.
discussed
Cited as authority (rule)
Pieri v. B&B Welch Associates
It is well settled that, “[w]here . . . the ‘actions [of the worker are] the sole proximate cause of his or her injuries ...[,] liability under Labor Law § 240 (1) [does] not attach’ ” (Lovall v Graves Bros., Inc., 63 AD3d 1528 , 1529 [2009], quoting Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]).
discussed
Cited as authority (rule)
Ferris v. Benbow Chemical Packaging, Inc.
Plaintiffs installation of a pipe system for cleaning the tanks constituted a significant physical change to the tanks that went beyond routine maintenance, and thus plaintiff was engaged in “altering” structures within the meaning of the statute (§ 240 [1]; see Joblon v Solow, 91 NY2d 457, 465 [1998]; Weininger v Hagedorn & Co., 91 NY2d 958, 959-960 [1998], rearg denied 92 NY2d 875 [1998]).
discussed
Cited as authority (rule)
Rivera v. 800 Alabama Ave., LLC
Co., Inc., 10 NY3d 333, 337 [2008]; Panek v County of Albany, 99 NY2d 452, 457-458 [2003]; Weininger v Hagedorn & Co., 91 NY2d 958, 959-960 [1998]; Cuddon v Olympic Bd. of Mgrs., 300 AD2d 616, 617 [2002]).
cited
Cited as authority (rule)
Herrnsdorf v. Bernard Janowitz Construction Corp.
Ctr., LP, 6 NY3d 550, 554 [2006], quoting Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; see Blake v Neighborhood Hous.
discussed
Cited as authority (rule)
Lovall v. Graves Bros.
Where, however, the “actions [of the worker are] the sole proximate cause of his or her injuries ...[,] liability under Labor Law § 240 (1) [does] not attach” (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]; see Blake v Neighborhood Hous.
cited
Cited as authority (rule)
Dalaba v. City of Schenectady
City, 1 NY3d at 290-291 ; Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]) or that plaintiff was recalcitrant in deliberately refusing to use available safety devices (see Gordon v Eastern Ry.
cited
Cited as authority (rule)
Pak v. Key Construction Management Corp.
Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35, 39 [2004]; Blake at 290 ; Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]).
discussed
Cited as authority (rule)
Gherardi v. City of New York
Even if, arguendo, defendant contractors’ argument regarding the nature of plaintiffs work may be raised at this juncture, such work, involving an extensive project for the installation of wiring on four floors of a public high school building, effected a significant physical change and was therefore an “alteration” (see Joblon v Solow, 91 NY2d 457, 465-466 [1998]; Weininger v Hagedorn & Co., 91 NY2d 958, 959-960 [1998]).
discussed
Cited as authority (rule)
Delahaye v. Saint Anns School
Similarly, the inconsistencies as to how the accident occurred, as well as other inconsistencies in the record, preclude finding, as a matter of law, that the plaintiffs own conduct was the sole proximate cause of the accident (see Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; Miano v Skyline New Homes Corp., 37 AD3d 563 [2007]; Chimborazo v WCL Assoc., Inc., 37 AD3d 394 [2007]; cf. Montgomery v Federal Express Corp., 4 NY3d 805 [2005]; Blake v Neighborhood Hous.
discussed
Cited as authority (rule)
Destefano v. City of New York
Accordingly, the accident comes within the purview of Labor Law § 240 (1) (see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878, 881-882 [2003]; Weininger v Hagedorn & Co., 91 NY2d 958, 959-960 [1998]; Joblon v Solow, 91 NY2d 457, 465 [1998]; Lijo v City of New York, 31 AD3d 503, 504 [2006]; Aguilar v Henry Mar.
discussed
Cited as authority (rule)
Brown v. Concord Nurseries, Inc.
Finally, there is a triable issue of fact whether the conduct of plaintiff was the sole proximate cause of his injuries (see Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]; Trippi, 28 AD3d at 1070 ; Tronolone v Praxair; Inc., 22 AD3d 1031, 1033 [2005]).
discussed
Cited as authority (rule)
Albert v. Williams Lubricants, Inc.
However, “[w]here a ‘plaintiffs actions [are] the sole proximate cause of his [or her] injuries, . . . liability under Labor Law § 240 (1) [does] not attach’ ” (id., quoting Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; see Blake v Neighborhood Hous.
cited
Cited as authority (rule)
Hart v. Turner Construction Co.
City, 1 NY3d 280, 290-292 [2003]; Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]), there is no view of the evidence plausibly supporting that contention.
discussed
Cited as authority (rule)
Marin v. Levin Properties, LP
Auth., 282 AD2d 430 [2001]), but a defendant cannot be liable if the plaintiffs actions were the sole proximate cause of the accident (see Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; Morin v Machnick Bldrs., 4 AD3d 668, 669 [2004]).
discussed
Cited as authority (rule)
Robinson v. East Medical Center
Where a “plaintiffs actions [are] the sole proximate cause of his injuries, . . . liability under Labor Law § 240 (1) [does] not attach” (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; see also Cahill v Triborough Bridge & Tunnel Auth., 4 NY3d 35 [2004]; Blake v Neighborhood Hous.
cited
Cited as authority (rule)
Busch v. Erie County Industrial Development Agency
City, 1 NY3d 280, 290-292 [2003]; Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]), precluding summary judgment.
discussed
Cited as authority (rule)
Enge v. Ontario County Airport Management Co.
We agree with plaintiffs that plaintiff was engaged in “altering” a building or structure within the meaning of Labor Law § 240 (1) at the time of his injury (see Joblon v Solow, 91 NY2d 457, 465 [1998]; Weininger v Hagedorn & Co., 91 NY2d 958, 959-960 [1998], rearg denied 92 NY2d 875 [1998]; Lang v Mancuso & Son, 298 AD2d 960, 961 [2002]; Smith v Pergament Enters. of S.I., 271 AD2d 870, 871 [2000]; Di Giulio v Migliore, 258 AD2d 903 [1999]).
discussed
Cited as authority (rule)
Anderson v. Schwartz
Similarly, in Weininger v Hagedorn & Co. ( 91 NY2d 958, 959 [1998]), the companion case to Joblon , the Court held that significant physical change was made by “running computer and telephone cable through the ceiling from an existing computer room in [an] office to newly leased space that would be used as a telecommunications center[, which] involved standing on a ladder to access a series of holes punched in the ceiling and pulling the wiring through ‘canals’ that had been made in chicken wire in the ceiling.” The Court held in Joblon that standing on a ladder and chiseling a hole in…
discussed
Cited as authority (rule)
Ward v. Cedar Key Associates, L.P.
Contrary to their further contention, defendants failed to raise a triable issue of fact whether the conduct of plaintiff was the sole proximate cause of his injuries (see Panek v County of Albany, 99 NY2d 452, 458 [2003]; Villeneuve v State of New York, 274 AD2d 958 [2000]; Adderly, 273 AD2d at 795 ; cf. Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]).
discussed
Cited as authority (rule)
Perrone v. Tishman Speyer Properties, L.P.
The “sole proximate cause” exception precludes claims under section 240 (1) (see Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]) where the injured party is solely responsible for the accident (see Blake v Neighborhood Hous.
cited
Cited as authority (rule)
Gilbert v. Albany Medical Center
City, supra at 290-291; Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]).
discussed
Cited as authority (rule)
Robinson v. City of New York
Co. , 171 AD2d 292, 296 [1st Dept 1991] [additional emphasis supplied].) This kind of egregious conduct has evolved into the legal "axiom" that liability will not be imposed upon owners and contractors when the worker's conduct is the " sole proximate cause" of the occurrence. ( Weininger v Hagedorn & Co. , 91 NY2d 958, 960 [1998] [emphasis supplied], rearg denied 92 NY2d 875 [1998].) Limitations on the Sole Proximate Cause Defense The "sole proximate cause" defense must logically be limited to the situation where a worker has been provided with "proper protection," {** 4 Misc 3d at 547 }and t…
discussed
Cited as authority (rule)
Robinson v. City of New York
Co., 171 AD2d 292, 296 [1st Dept 1991] [additional emphasis supplied].) This kind of egregious conduct has evolved into the legal “axiom” that liability will not be imposed upon owners and contractors when the worker’s conduct is the “sole proximate cause” of the occurrence. {Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998] [emphasis supplied], rearg denied 92 NY2d 875 [1998].) Limitations on the Sole Proximate Cause Defense The “sole proximate cause” defense must logically be limited to the situation where a worker has been provided with “proper protection,” and the worke…
discussed
Cited as authority (rule)
Burke v. APV Crepaco, Inc.
Defendants failed to raise a triable issue of fact whether the actions of plaintiff were the sole proximate cause of his injuries (see Dahl, 280 AD2d at 971 ; cf. Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]).
discussed
Cited as authority (rule)
Blake v. Neighborhood Housing Services of New York City, Inc.
In Weininger v Hagedorn & Co. ( 91 NY2d 958, 960 [1998]), we held that “Supreme Court erred ... in directing a verdict in favor of plaintiff, at the close of his own case, on the issue of proximate cause” where “a reasonable jury could have concluded that plaintiff’s actions were the sole proximate cause of his injuries, and consequently that liability under [section] 240 (1) did not attach.” Contrary to plaintiff’s claim, the Appellate Division has held (both before and after Weininger) that a defendant is not liable under Labor Law § 240 (1) where there is no evidence of violati…
discussed
Cited as authority (rule)
Boguszewski v. Solo Salon & Spa
If a reasonable factfinder could conclude that the plaintiffs own actions were the sole proximate cause of his or her injuries, the plaintiff is not entitled to summary judgment on the issue of liability (see Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]).
cited
Cited as authority (rule)
Selja v. American Home Products Corp.
Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]).
discussed
Cited as authority (rule)
Hernandez v. 151 Sullivan Tenant Corp.
Nor is there any reasonable view of the evidence from which it might be concluded that “plaintiffs actions were the sole proximate cause of his injuries” (Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]).
cited
Cited as authority (rule)
Petit v. Board of Education
Corp., 273 AD2d 795 [2000]; cf. Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]; Costello v Hopco Realty, 305 AD2d 445 [2003]).
cited
Cited as authority (rule)
Howe v. Syracuse University
We reject that contention (cf. Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998], rearg denied 92 NY2d 875 [1998]).
discussed
Cited as authority (rule)
Costello v. Hapco Realty, Inc.
Such issues of fact preclude the grant of summary judgment in favor of either party (see Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998]; Olberding v Dixie Contr., 302 AD2d 574 [2003]; Blake v Neighborhood Hous.
discussed
Cited as authority (rule)
Cordeiro v. Shalco Investments
Thus, although the motion court correctly dismissed Hicksville’s recalcitrant worker defense (which disposition Hicksville does not challenge on appeal), defendants may be able to establish at trial that plaintiffs injuries were proximately caused solely by his own actions, not by any failure of defendants to provide adequate safety devices (see, Weininger v Hagedorn & Co., 91 NY2d 958, 960 [directed verdict for plaintiff on issue of liability under Labor Law § 240 (1) was error where “a reasonable jury could have concluded that plaintiffs actions were the sole proximate cause of his inju…
discussed
Cited as authority (rule)
Drexel v. New York State Thruway Authority
Defendant failed to raise a triable issue of fact on causation in opposition to claimants’ motion, and defendant failed to meet its burden on its cross motion of demonstrating that the conduct of claimant was the sole proximate cause of his injuries (see, Villeneuve v State of New York, 274 AD2d 958 ; cf., Weininger v Hagedorn & Co., 91 NY2d 958, 960, rearg denied 92 NY2d 875 ).
cited
Cited as authority (rule)
McMahon v. 42nd St. Development Project, Inc.
(Weininger v Hagedorn & Co., 91 NY2d 958, 960 [1998] [emphasis supplied], rearg denied 92 NY2d 875 [1998].) B.
Retrieving the full opinion text from the archive…
Jeffrey Weininger Et Al., Respondents,
v.
Hagedorn & Company, Defendant and Third-Party Plaintiff-Appellant, and American Insurance Marketing Corporation Et Al., Defendants; 225 Broadway Company Et Al., Respondents. Alpha Tele-Connect, Inc., Third-Party Defendant-Respondent
v.
Hagedorn & Company, Defendant and Third-Party Plaintiff-Appellant, and American Insurance Marketing Corporation Et Al., Defendants; 225 Broadway Company Et Al., Respondents. Alpha Tele-Connect, Inc., Third-Party Defendant-Respondent
New York Court of Appeals.
Apr 30, 1998.
695 N.E.2d 709
APPEARANCES OF COUNSEL, Herzfeld & Rubin, P. C., New York City (David B. Hamm, Herbert Rubin and Linda M. Brown of counsel), for defendant and third-party plaintiff-appellant., Carol R. Finocchio, New York City, and Richard J. Katz for Jeffrey Weininger and another, respondents., Harvey, Pennington, Herting & Renneisen, L.L.C., New York City (Carolyn B. Stevens of counsel), for third-party defendant-respondent.
Kaye and Judges Bellacosa, Smith, Levine and Wesley Concur in Memorandum Judges Titone and Ciparick Taking No Part.
Cited by 164 opinions | Published
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed, with costs, judgment for plaintiffs vacated, defendant third-party plaintiff Hagedorn’s third-party complaint reinstated and case remitted to Supreme Court for a new trial.
Plaintiff, an employee of third-party defendant Alpha TeleConnect, Inc., was injured when he fell from a ladder while working at premises leased by defendant Hagedorn & Company. At the time of his accident, plaintiff was running computer and telephone cable through the ceiling from an existing computer room in Hagedorn’s office to newly leased space that would be used as a telecommunications center. This involved standing on a ladder to access a series of holes punched in the ceiling and pulling the wiring through “canals” that had been made in chicken wire in the ceiling.
We agree with both Supreme Court and the Appellate Division that plaintiff was engaged in “altering” a building or[*960] structure within the meaning of Labor Law § 240 (1). Here, at the time of his injury, plaintiffs work involved “making a significant physical change to the configuration or composition of the building or structure,” not a simple, routine activity (Joblon v Solow, 91 NY2d 457, 465 [decided today] [emphasis in original]). Supreme Court erred, however, in directing a verdict in favor of plaintiff, at the close of his own case, on the issue of proximate cause. In the circumstances presented, a reasonable jury could have concluded that plaintiffs actions were the sole proximate cause of his injuries, and consequently that liability under Labor Law § 240 (1) did not attach (see, Zimmer v Chemung County Performing Arts, 65 NY2d 513, 524).
Supreme Court, moreover, erred in directing a verdict for third-party defendant Alpha on Hagedorn’s claim for common-law indemnification. On this record, there are questions of fact as to whether Alpha properly supervised and controlled the work of the injured plaintiff (see, Felker v Corning Inc., 90 NY2d 219, 226). Supreme Court’s reason for ruling against Hagedom as a matter of law — that it had disposed of the ladder involved in plaintiffs accident — is irrelevant to those questions.
The parties’ remaining arguments are either unpreserved or without merit.
Chief Judge Kaye and Judges Bellacosa, Smith, Levine and Wesley concur in memorandum; Judges Titone and Ciparick taking no part.
Order reversed, etc.