Labor Law claim in New York

2024In Walls, supra, the Court of Appeals determined that a construction manager was an agent and a proper Labor Law defendant based on: "(l) the specific contractual terms creating agency, (2) the absence of a general contractor, (3) [the construction manager's] duty to oversee the construction site and the trade contractors, and (4) [the construction manager's] representative's acknowledgment that [it] had authority to control activities at the work site and to stop any unsafe work practices" (id at 864).

2023Co. , 4 NY3d 861, 863-864 [2005]).

2025The statute does not require "perfect" or "absolute" protection, nor does it impose absolute liability whenever a worker chooses to use an unsafe method to perform the work ( see Meade v Rock-McGraw, Inc. , 307 AD2d 156 [1st Dept 2003] ["That the ladder was inadequately secured was due to plaintiff's improper use of it, which would not give rise to a Labor Law violation"]; see also Bonczar v American Multi-Cinema, Inc. , 38 NY3d 1023 [2022] [ladder wobbled]; Nalepa v South Hill Bus.

2025The statute does not require "perfect" or "absolute" protection, nor does it impose absolute liability whenever a worker chooses to use an unsafe method to perform the work ( see Meade v Rock-McGraw, Inc. , 307 AD2d 156 [1st Dept 2003] ["That the ladder was inadequately secured was due to plaintiff's improper use of it, which would not give rise to a Labor Law violation"]; see also Bonczar v American Multi-Cinema, Inc. , 38 NY3d 1023 [2022] [ladder wobbled]; Nalepa v South Hill Bus.

2025PAI had authority to supervise the HVAC work and demonstrated this authority by subcontracting a portion of the HVAC work to plaintiff's employer ( see Weber v Baccarat, Inc ., 70 AD3d 487, 488 [1st Dept 2010]; see also Nascimento v Bridgehampton Constr.

2025PAI had authority to supervise the HVAC work and demonstrated this authority by subcontracting a portion of the HVAC work to plaintiff's employer ( see Weber v Baccarat, Inc ., 70 AD3d 487, 488 [1st Dept 2010]; see also Nascimento v Bridgehampton Constr.

2025O'Kane is also a proper Labor Law defendant as the record raises triable issues of fact as to whether it placed its materials on a defective dolly inside the Apple Store in the area of the HVAC run, so as to exercise control over the work area involved in the accident ( see Vargas v Peter Scalamandre & Sons, Inc. , 105 AD3d 454, 455-456 [1st Dept 2013]).

2025O'Kane is also a proper Labor Law defendant as it placed its materials on a defective dolly inside the Apple Store in the area of the HVAC run, thus exercising control over the work area involved in the accident ( see Vargas v Peter Scalamandre & Sons, Inc. , 105 AD3d 454, 455-456 [1st Dept 2013]).

2021Rather, the only claim against Koenig is by Sciame for contractual indemnification, the right to which "depends upon the specific language of the contract" ( Alfaro v 65 W. 13th Acquisition, LLC , 74 AD3d 1255, 1255 [2d Dept 2010]; see Trawally v City of New York , 137 AD3d 492, 492-493 [1st Dept 2016]).

2021Rather, the only claim against Koenig is by Sciame for contractual indemnification, the right to which "depends upon the specific language of the contract" ( Alfaro v 65 W. 13th Acquisition, LLC , 74 AD3d 1255, 1255 [2d Dept 2010]; see Trawally v City of New York , 137 AD3d 492, 492-493 [1st Dept 2016]).

2021The complaint fails to state a cause of action for retaliation under Labor Law § 215, as the purported retaliatory act occurred when plaintiff was no longer an employee of defendants ( see Rahman v Red Chili Indian Cafe, Inc. , 2021 WL 2003111 , *3, 2021 US Dist LEXIS 95140 , *8-9 [SD NY 2021]; Higueros v New York State Catholic Health Plan, Inc. , 630 F Supp 2d 265, 269 [ED NY 2009]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

2021The complaint fails to state a cause of action for retaliation under Labor Law § 215, as the purported retaliatory act occurred when plaintiff was no longer an employee of defendants ( see Rahman v Red Chili Indian Cafe, Inc. , 2021 WL 2003111 , *3, 2021 US Dist LEXIS 95140 , *8-9 [SD NY 2021]; Higueros v New York State Catholic Health Plan, Inc. , 630 F Supp 2d 265, 269 [ED NY 2009]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

2021Rather, the only claim against Koenig is by Sciame for contractual indemnification, the right to which "depends upon the specific language of the contract" ( Alfaro v 65 W. 13th Acquisition, LLC , 74 AD3d 1255, 1255 [2d Dept 2010]; see Trawally v City of New York , 137 AD3d 492, 492-493 [1st Dept 2016]).

2021Rather, the only claim against Koenig is by Sciame for contractual indemnification, the right to which "depends upon the specific language of the contract" ( Alfaro v 65 W. 13th Acquisition, LLC , 74 AD3d 1255, 1255 [2d Dept 2010]; see Trawally v City of New York , 137 AD3d 492, 492-493 [1st Dept 2016]).

2006The various articles listed above illustrate that section 200 protects broader categories of work than section 241 (6) protects: manufacturing in factories, under article 11, and work in restaurants, under article 14, for example (Jock v Fien, 80 NY2d 965, 967-968 [1992]; Mejia v Levenbaum, 30 AD3d 262 [1st Dept 2006]).

2000Defendant submitted proof establishing that plaintiff was performing routine maintenance unconnected to any construction work at the time of the accident, and thus he was not engaged in an activity protected under Labor Law § 240 (1) or § 241 (6) (see, Haghighi v Bailer, 240 AD2d 368 ; see also, Jock v Fien, 80 NY2d 965, 968 ).

2025Charles Condos. , 303 AD2d 152, 154 [1st Dept 2003]; Aragon v 233 W. 21st St., Inc. , 201 AD2d 353, 354 [1st Dept 1994].) Plaintiffs are not required to show that the scaffold was defective. ( See Martinez-Gonzalez v 56 West 75th St., LLC , 172 AD3d 616 , 617 [1st Dept 2019].) Initially, it is uncontested that defendants are proper Labor Law defendants, such that liability may attach to them under Labor Law § 240 (1).

1998Given that the Labor Law violation was a proximate and substantial cause of plaintiff’s injuries, the burden shifts to the defendants (see, Aragon v 233 W. 21st St., 201 AD2d 353, 354 ) to present non-speculative evidence that would allow a reasonable fact finder to conclude “that plaintiff’s actions were the sole proximate cause of his injuries” (Weininger v Hagedorn & Co., 91 NY2d 958, 960 ).

2023Co., Inc. , 10 NY3d 333 [2008]).

2018Defendant Mosholu Realty, as the fee owner of the subject premises, is liable for any Labor Law violation occurring on the premises, regardless of whether it lacked knowledge of the work or control over how it was performed ( see Sanatass v Consolidated Investing Co., Inc. , 10 NY3d 333, 335 [2008]).

2026A party must also show itself free from negligence to prevail on a motion to dismiss a common-law indemnification or contribution claim (Poalacin v Mall Properties, Inc., 155 AD3d 900, 909 [2d Dept 2017]).

2026The Court of Appeals observed in Scaparo v Village of Ilion that "the term 'owner' is not limited to the titleholder of the property where the accident occurred and encompasses a person 'who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit'" (13 NY3d 864, 866 [2009]; see also Smith v McClier Corp. , 22 AD3d 369, 371 [1st Dept 2005] [the key to imposing Labor Law liability is that the party to be charged have authority to supervise and control the work and safety]; Sweeting v Board of Coop.

2026The Court of Appeals observed in Scaparo v Village of Ilion that "the term 'owner' is not limited to the titleholder of the property where the accident occurred and encompasses a person 'who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit'" ( 13 NY3d 864 , 866 [2009]; see also Smith v McClier Corp. , 22 AD3d 369, 371 [1st Dept 2005] [the key to imposing Labor Law liability is that the party to be charged have authority to supervise and control the work and safety]; Sweeting v Board of Coop.

2026The Court of Appeals observed in Scaparo v Village of Ilion that "the term 'owner' is not limited to the titleholder of the property where the accident occurred and encompasses a person 'who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit'" (13 NY3d 864, 866 [2009]; see also Smith v McClier Corp. , 22 AD3d 369, 371 [1st Dept 2005] [the key to imposing Labor Law liability is that the party to be charged have authority to supervise and control the work and safety]; Sweeting v Board of Coop.

2026The Court of Appeals observed in Scaparo v Village of Ilion that "the term 'owner' is not limited to the titleholder of the property where the accident occurred and encompasses a person 'who has an interest in the property and who fulfilled the role of owner by contracting to have work performed for his [or her] benefit'" ( 13 NY3d 864 , 866 [2009]; see also Smith v McClier Corp. , 22 AD3d 369, 371 [1st Dept 2005] [the key to imposing Labor Law liability is that the party to be charged have authority to supervise and control the work and safety]; Sweeting v Board of Coop.

2025“Where credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact exist making summary judgment inappropriate” (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [1st Dept 2012]; see also Santiago v Fred-Doug 117, L.L.C., 68 AD3d 555, 556 [1st Dept 2009]).

2025“Where credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact exist making summary judgment inappropriate” (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [1st Dept 2012]; see also Santiago v Fred-Doug 117, L.L.C., 68 AD3d 555, 556 [1st Dept 2009]).

2025Corp., 86 AD3d 189, 192-193 [1st Dept 2011]).

2025“Where credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact exist making summary judgment inappropriate” (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [1st Dept 2012]; see also Santiago v Fred-Doug 117, L.L.C., 68 AD3d 555, 556 [1st Dept 2009]).

2025“Where credible evidence reveals differing versions of the accident, one under which defendants would be liable and another under which they would not, questions of fact exist making summary judgment inappropriate” (Ellerbe v Port Auth. of N.Y. & N.J., 91 AD3d 441, 442 [1st Dept 2012]; see also Santiago v Fred-Doug 117, L.L.C., 68 AD3d 555, 556 [1st Dept 2009]).

2025Charles Condos. , 303 AD2d 152, 154 [1st Dept 2003]; Aragon v 233 W. 21st St., Inc. , 201 AD2d 353, 354 [1st Dept 1994].) Plaintiffs are not required to show that the scaffold was defective. ( See Martinez-Gonzalez v 56 West 75th St., LLC , 172 AD3d 616 , 617 [1st Dept 2019].) Initially, it is uncontested that defendants are proper Labor Law defendants, such that liability may attach to them under Labor Law § 240 (1).

2024The Legislature's enactment of the No Wage Theft Loophole Act (Labor Law § 193, as amended by L 2021, ch 397), does not require reinstatement of defendants' Labor Law claim because the Act does not apply retroactively ( see Kanthan v Tagstone Tech., LLC , — AD3d —, —, 2024 NY Slip Op 00973, *1 [1st Dept 2024]; Raparthi v Clark , 214 AD3d 613, 614 [1st Dept 2023]).

2024Defendants contend that Raparthi should be overruled because the Act's text and legislative history support its retroactive application—arguments that this Court has already considered and rejected ( see Raparthi , 214 AD3d at 614 ), and we discern no compelling justification to overturn our recent precedents ( see Matter of State Farm Mut.

2024Romano v One City Block LLC, 187 AD3d 653, 654 [1st Dept 2020] [denying summary judgment on section 240(1) cause of action where two credible theories of accident existed]).

2024Romano v One City Block LLC, 187 AD3d 653, 654 [1st Dept 2020] [denying summary judgment on section 240(1) cause of action where two credible theories of accident existed]).

2024Patino v Drexler , 116 AD3d 534, 534-535 [1st Dept 2014]).

2024The Legislature's enactment of the No Wage Theft Loophole Act (Labor Law § 193, as amended by L 2021, ch 397), does not require reinstatement of defendants' Labor Law claim because the Act does not apply retroactively ( see Kanthan v Tagstone Tech., LLC , — AD3d —, —, 2024 NY Slip Op 00973, *1 [1st Dept 2024]; Raparthi v Clark , 214 AD3d 613, 614 [1st Dept 2023]).

2024Therefore, Chetrit cannot be held liable for decedent's death, as it was not a proper Labor Law defendant ( see Otero v 635 Owner LLC , 210 AD3d 435, 437 [1st Dept 2022]).

2024Therefore, Chetrit cannot be held liable for decedent's death, as it was not a proper Labor Law defendant ( see Otero v 635 Owner LLC , 210 AD3d 435, 437 [1st Dept 2022]).