Separating Elevations Risks Under Labor Law § 240 (1) From Other Conditions That Could Cause an Employee’s Injury

By: Erika Vasant, Law Clerk
Editor: Patrick J. Graham, Esq.

In Schutt v. Dynasty Transp. of Ohio, Inc., 203 A.D.3d 858 (2022), the Supreme Court of New York, Appellate Division, Second Department reaffirmed the State’s current understanding of Labor Law §240(1). In this case, plaintiff, an elevator assembly employee, was unloading the components of an elevator from a truck. As plaintiff was attempting to move a hydraulic jack, his foot slipped and he fell down two feet from the truck bed injuring his shoulders and back. When plaintiff stood up, he noticed that an oily substance was on his clothes, which he determined to have originated from the truck’s bed.

Plaintiff filed a complaint alleging violations of Labor Law §240(1) and §241(6) as well as negligence by the defendants. The Supreme Court, however, granted all the defendants’ motions to dismiss, and the plaintiff appealed.

The Appellate Division first referenced the notes in Labor Law Section 240(1) which states:

Labor §240(1) should apply only to circumstances where there are risks related to elevation differentials since types of devices which statute prescribes (ladders, scaffolds, etc.) share common characteristic related to relative elevation at which task must be performed or at which materials or loads must be positioned or secured.

As such, the Court reasoned that if plaintiff’s injury resulted from an elevation risk, but the fall was actually caused by spilled oil, the fall would constitute a separate hazard. Leaning on the Court of Appeals of New York’s decision in Nicometi v. Vineyards of Fredonia, LLC, 25 N.Y.3d 90 (N.Y. 2015), the Court noted that “regardless of the type of safety device involved, liability arises under Labor Law §240(1) only where the plaintiff’s injuries are the ‘direct consequence’ of an elevation-related risk not a separate and ordinary tripping or slipping hazard.”

Prior to Nicometi, the Court of Appeals held that “…the question is whether the circumstances surrounding plaintiff’s work subjected him to the sort of risk which Section 240(1) was intended to obviate.” Rocovich v. Consolidated Edison Co., 78 N.Y.2d 509, 514 (N.Y. 1991). In analyzing both Nicometi and Rocovich the Court affirmed that Labor Law §240(1) only applied to injuries caused by elevated surface differentials.

Nonetheless, the Court did not dismiss the claims against the same defendants regarding the causes of action relating to Labor Law Section 241(6) based on 12 NYCRR 23-1.7(d). The law bars employers from allowing employees to “use a floor, passageway, walkway, scaffold, platform, or other elevated working surface which is in a slippery condition.” N.Y. Comp. Codes R. & Regs. tit. 12 §23-1.7 (2021). In this case, the Court found that the defendants did incur liability by allowing Plaintiff to perform his work in the truck amidst spilled oil.

Fundamentally, this case continued Labor Law §240(1) preference for employers because liability is only incurred when the injury stems from a device that creates elevation risks. If an injury stems from any other type of object that has no elevation risk, then employers are exempt from liability. Even so, employers must remain careful so as to not permit employees to perform their work in slippery conditions in order to avoid violating 12 NYCRR 23-1.7(d).


Erika Vasant is one of Capehart Scatchard’s 2022 Law Clerks. Ms. Vasant is a rising 3L at Rutgers Law School. She has played an active role in diversity as President of the South Asian Law Students Association. Currently, she is President of the Rutgers Employment and Labor Law Association, Vice President of the Animal Legal Defense Fund, and the Notes and Comments Editor for the Women’s Rights Law Reporter. Last summer, she interned with the Honorable Judge Younge in the United States District Judge for the Eastern District of Pennsylvania. She is incredibly honored to be interning at Capehart Scatchard this summer!


Providing Legal Counsel To New York State Funeral Homes Facing Liability – A Brief Overview Of Relevant Issues

Death is one of life’s greatest uncertainties and is often accompanied by fear, discomfort and existentialism. Societal reluctance to discuss death in an open and honest manner often carries real costs by leaving families and friends of the deceased ill-prepared for the untimely deaths of loved ones. In a time of uncertainty and emotional taxation, families spending thousands of dollars on funeral arrangements expect perfection and flawless delivery of contracted funeral services. While errors by funeral homes and service providers in executing these arrangements do happen and can often be resolved with transparent communication, larger mistakes, such as burial of the wrong body, or burial in an incorrect manner, can land funeral service providers in civil lawsuits potentially carrying disastrous consequences. The State of New York has developed a large body of law addressing these civil claims asserted against funeral homes and this law probes a funeral service provider’s conduct in its disposition of the remains of the deceased.

New York recognizes, among other claims, a specific cause of action to recover for funeral home negligence by way of Right of Sepulcher. Generally, common law Right of Sepulcher protects the next of kin’s right to bury the deceased. This common law right was seminally articulated in Rugova v. City of New York where the Court noted that it is the next of kin’s absolute right “to the immediate possession of a decedent’s body for preservation and burial.” The right’s parameters were further articulated in Melfi v. Mount Sinai Hosp., where the Court explained that if a “person unlawfully interferes with that right or improperly deals with the decedent’s body,” damages are awarded against that person “as compensation to the next of kin” for the emotional injury that resulted from their inability to conduct a proper burial.”

The Right of Sepulcher is recognized in New York’s common law, but the State legislature also codified the right under the New York Public Health Law Article 42 (hereafter “NYPHL 42”).  A plaintiff can assert claims under both the common law and NYPHL 42 versions of the right when interference with right to a proper burial occurs. NYPHL 42 deals with cadavers and consists of multiple chapters and subsections discussing these issues.  New York’s Courts have recognized a cause of action under NYPHL 4200 for interference with right to immediate possession of decedent’s body and specifically provides:

Except in the cases in which a right to dissect it is expressly conferred by law, every body of a deceased person, within this state, shall be decently buried or incinerated within a reasonable time after death…The provisions of this section shall not impair the right to carry the body of a deceased person through this state, or to remove from this state the body of a person who has died within it, for the purpose of burying the same elsewhere.

New York Courts have broadly interpreted the issues surrounding this right, and have awarded compensation in the past for violations of the same. The New York judiciary has historically favored plaintiffs in hearing these claims. New York Courts have essentially created a “deluxe package” of the property right in a deceased’s body and disposition, which was first recognized in the case of Larson v. Chase. Over the years, New York Courts have assigned property value in corpses to be protected, allowed for recovery for emotional distress even absent money damages, expanded the right to include body parts and organs and imposed a duty to notify. This “deluxe package” only increased the duties and penalties on hospitals and those who handle the dead.

Typically, practitioners asserting claims on behalf of a deceased’s next of kin in New York Courts will file a civil complaint against a funeral home or funeral service to accuse the entity of negligence, breach of contract, or breach of some other kind of duty. The decision to assert a separate count citing the Right of Sepulcher is a strategic one and some attorneys choose to raise the Right of Sepulcher for the first time in a dispositive motion. As discussed in more detail below, it is of the utmost importance for a plaintiff’s attorney to prove that the funeral service provider failed to act in good faith in carrying out the disposition of the deceased’s remains. The Right of Sepulcher is especially concerned with the lack of good faith conduct and will find for a plaintiff when the same is present.

Given the strength of the Right of Sepulcher and the New York judiciary’s tendency to favor Plaintiffs, it should be noted that the right is not absolute. NYPHL 42 also provides for statutory defenses that New York practitioners defending funeral homes and funeral service providers should seek to invoke. NYPHL 4201 concerns “disposition of remains, responsibility therefore.”  Article 42, Title 7 concerning cemetery and funeral home liability, provides a shield for funeral home liability for:

actions taken reasonably and in good faith to carry out the written directions of a decedent as stated in a will or in a written instrument executed pursuant to this section [and] actions taken reasonably and in good faith to carry out the directions of a person who represents that he or she is entitled to control of the disposition of remains, provided that such action is taken only after requesting and receiving written statement that such person:

(a) is the designated agent of the decedent designated in a will or written instrument executed pursuant to this section; or (b) that he or she has no knowledge that the decedent executed a written instrument pursuant to this section or a will containing directions for the disposition of his or her remains and that such person is the person having priority under subdivision two of this section.

This statutory defense places a great deal of emphasis on having the right person control the disposition of the deceased’s remains. For many funeral homes and service providers, this issue of control is a nonfactor as control is not for the funeral service provider to decide and is normally left to the next of kin or to the deceased in preparing a last will and testament. To be afforded this protection, a funeral home must first prove that it took actions in good faith to carry out the directions of a member of the estate who represented that he or she is entitled to control of the disposition of decedent’s remains. The other component of the statute requires the funeral home to request and receive a written statement that such person is either the designated agent of the decedent (designated in a will or written instrument executed pursuant to this section); or that person has no knowledge that the decedent executed a written instrument pursuant to this section or a will containing directions for the disposition of his or her remains and that such person is the person having priority under subdivision two of this section shown above.

In showing that it acted in good faith in carrying out the instructions the deceased’s designated agent, a funeral home or service provider must establish a fine detailed timeline of events in conducting the disposition. Funeral service providers should be aware that these types of claims function as an examination of their compliance with the statutory requirements under NYPHL 4201. In defending against Right of Sepulcher claims, a timeline showing compliance with NYPHL 4201 and to the designated agent’s instructions by way of the deceased may be the difference in funeral service providers avoiding liability for alleged mistakes.


Esperanza Perez v. Table Run Estates, Inc. et al, 2021 WL 329300, 2021 N.Y.Slip Op. 00533

Client: Table Run Estates, Inc. and Condetta Brown Desgoutte

Court: New York Appellate Division, First Department

Trial Attorney:  Stephen J. Alexander, Esq.

Brief Attorney:  Alyson L. Knipe, Esq. 

**Results may vary depending on your particular facts and legal circumstances**

The New York Appellate Division First Department affirmed a lower court’s decision to vacate a $2.2 million dollar default judgment that was entered against Defendants Table Run Estates and Condetta Desgouttee when their answer was stricken based on their prior attorney’s failure to appear for court conferences and depositions.

The First Department held that an attorney who was suspended from and subsequently disbarred for neglecting legal matters and who failed to communicate with clients served as a reasonable excuse under CPLR 5015(a)(1) to vacate the default.  The court also found that plaintiff offered no evidence that she incurred any prejudice.  Therefore, the Appellate Division concluded that defendant’s motion to vacate the judgment was properly granted.


Defendant-Operator With Right-of-Way Wins Dismissal

Not every intersection accident is a ‘he said/she said’ toss up for the jury to decide.

The First Department recently held that summary judgment dismissal was properly granted to the defendants, vehicle owner and operator, in an intersection accident where plaintiff’s vehicle was controlled by a stop sign, in the case of Yahaira Lugo v. Daytona Auto Sales, Inc., et al, 123 N.Y.S.3d 496, 2020 N.Y. Slip Op. 03199 (1st Dep’t 2020).  The defendants’ evidence established that the cause of the accident was the negligence of the driver of plaintiff’s vehicle, who failed to obey a stop sign in violation of New York’s Vehicle and Traffic Law Sect. 1142, which statute mandates that the driver of a vehicle approaching a stop sign shall stop and yield the right of way to any vehicle which has entered the intersection from another roadway or which is approaching so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection.

In affirming the order granting dismissal, the court in Lugo cited to its prior decision in Namisnak v. Martin, 244 A.D.2d 258, 260, 664 N.Y.S.2d 435 (1st Dep’t 1997) for its reasoning that defendants, with the right-of-way at the intersection where the collision occurred were “entitled to anticipate that other vehicles will obey the traffic laws that require them to yield”.  Id.

The Lugo Court rejected plaintiff’s contention that the defendants’ vehicle may have been driving over the posted speed limit as being insufficient to raise a triable issue of fact as to comparative negligence, since there is no evidence it could have contributed to the accident.  Lugo, 123 N.Y.S.3d 496.

Established precedent is that a “presumption of negligence” arises from a failure to yield the right of way at a stop sign, and that bare speculation that another driver was “going fast” is not enough to overcome the presumption of negligence or to create and issue of fact for trial.  Murchison v. Incognoli, 5 A.D.3d 271, 773 N.Y.S.2d 299 (1st Dep’t 2004).  In another similar stop sign case, one driver’s statement that he may have been driving “five miles over the posted speed limit of 30 miles per hour” was insufficient to raise an issue of fact as to comparative negligence since there is no evidence that it could have contributed to the collision.  Martinez v. Cofer, 128 A.D.3d 421, 8 N.Y.S.3d 212 (1st Dep’t 2015).

The cases highlight how following the rules of the road, and obeying stop signs in particular, can lead to favorable rulings and victory in court.


Ashley Metcalf v. AirBnb, EPKY 7395 LLC and Sofia Krimizi

Client: AirBnb

Court: New York Supreme Court, County of Kings

Brief Attorney:  Alyson L. Knipe, Esq. on the brief and oral argument by Stephen J. Alexander, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff commenced an action for personal injuries allegedly sustained as a result of a window slamming down on plaintiff’s hand while staying at an AirBnb accommodation booked through the AirBnb travel platform.

On May 18, 2020, Judge Ottley issued a decision granting summary judgment in favor of AirBnb. The court held that AirBnb did not owe plaintiff a duty of care. Additionally, the court found that the apartment listing on the AirBnb website for a fee does not meet the criteria of a “launching of a harm” under Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002). Lastly, the court further found that AirBnb lacked constructive notice of the window’s condition.


Barbara Bergman v. Bella Notte Restaurant, 191-219 Mineola LLC, and LI Parking Valet Inc.

Client: LI Parking

Court: New York Supreme Court, County of Nassau

Trial Attorney:  Stephen J. Alexander, Esq.

Brief Attorney:  Alyson L. Knipe, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff commenced an action for personal injuries allegedly sustained when she tripped and fell over a metal valet parking sign in a restaurant’s parking lot.

In the May 13, 2020 Judge Mahon granted summary judgment to defendant LI Parking.  Judge Mahon held that LI Parking did not launch a force or instrument of harm pursuant to Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136 (2002). The Court found that LI Parking established, prima facie, that it did not create or exacerbate a dangerous condition by its mere placement of the sign at the subject location.  At most, LI Parking furnished the occasion for the accident, but it was not sufficient to constitute the creation of an unreasonable risk of harm to others.


Appellate Division Holds Property Owner Who Did Not Create Alleged Sidewalk Defect Entitled To Summary Judgment

In Claro v. 323 Firehouse, LLC, 2019 NY Slip Op 07970 (3d Dept 2019), the Plaintiff allegedly injured her left shoulder when she tripped and fell on a raised concrete sidewalk slab.  At the time of the accident, she was walking towards a diner that was owned by one of the defendants.  In fact, the owner of the diner had repaired and replaced the sidewalk outside of the diner prior to the incident.  In addition to the diner, the Plaintiff also sued a firehouse located next door.

The diner and the firehouse both filed motions for summary judgment.  The Supreme Court of Greene County denied the defendants’ motions, indicating that the defendants failed to meet their summary judgment burdens as there were triable issues of material fact as to their negligence.  The defendants, however, appealed the Supreme Court’s decision.

The New York Appellate Division, Third Department, reversed the Supreme Court’s denial of the firehouse’s motion for summary judgment but affirmed the denial of the diner’s summary judgment motion.  In its decision, the Appellate Division discussed that “landowner(s) have a duty to maintain [their] property in a reasonably safe condition, trivial defects are not actionable.” (Gami v. Cornell Univ., 162 AD3d 1441, 1442 (2018), lv denied 32 NY3d 916 (2019)).  Additionally, New York courts have not established a bright-line rule for how much height differential between sidewalk slabs would render a defect trivial.  Rather, courts look to various factors, including the “width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury.” Id. at 1442.

The Appellate Division affirmed the denial of summary judgment as to the diner. Specifically, the Court held that the diner failed to establish that it did not create the alleged dangerous condition when he undertook the repairs to the sidewalk.  As to the firehouse, the Appellate Division reversed the trial court’s denial of summary judgment.  In reversing the lower court, the Appellate Division found that the firehouse had not made any changes to the sidewalk or curb area since purchasing the property in 2004.  Additionally, the firehouse was never notified of the diner’s intent to install the new sidewalk.  The contractor hired by the diner had no contract with the firehouse.  Therefore, the Appellate Division held that the firehouse did not create the alleged defect that caused the Plaintiff’s fall and it was entitled to summary judgment.


Mandatory, Non-Binding Arbitration Arrives In New York

On May 14, 2019, the New York State Unified Court System announced that it will begin rollout and implementation of a “presumptive” alternative dispute resolution (“ADR”) program [1], effectively bringing mandatory mediation to the New York System court system by the end of 2019.  The Presumptive ADR program is being implemented and modeled from similar practice in other jurisdictions, with a special focus eyeing New Jersey, where an automatic presumptive mediation program has been in place for more than a decade [2].  Local protocols and best practices are being developed by the Administrative Judges of each of New York’s 13 Judicial Districts to facilitate the process.

For the Supreme Court, Kings County in Brooklyn, the new rules for presumptive mediation are set to take effect on October 1, 2019.  All cases in Brooklyn where the Request for Judicial Intervention is filed on or after October 1, 2019 will be required to participate in the mediation program.  Mediations will begin in November, and will be scheduled 90 days from the date of the RJI.  Attorneys will be given 30 minutes of no-cost mediation, after which free half-hour the cost will be $400 per hour.  There will be an opt-out provision, available by order to show cause or by an in-person application to the mediator, if all parties agree that the mediation would not be feasible [3].  Court officials are estimating that nearly 20,000 mediation conferences will be held on Kings County civil cases in the first year [4].

Hon. George Silver, deputy chief administrative judge for the NYC courts has expressed his optimism that Presumptive ADR will benefit litigants and the court system alike, freeing up judicial resources for the more difficult cases.  “What we’re really doing, and it’s to the benefit of everyone, is we’re looking at cases earlier than later.  Certainly we know that there are cases that will never settle and will have to go to trial, but there certainly are that we can identify, and if we can settle 15 to 20 percent of cases [in Presumptive ADR], that leaves room for judges and everyone to work on more difficult cases.” [5].



[1] A copy of the press release is available herehttps://ww2.nycourts.gov/sites/default/files/document/files/2019-05/PR19_09_0.pdf

[2] “New York Courts to Begin Presumptive Mediation for Civil Cases Later This Year”, New York Law Journal, May 16, 2019 by Dan M. Clark  https://www.law.com/newyorklawjournal/2019/05/16/new-york-courts-to-begin-presumptive-mediation-for-civil-cases-later-this-year/

[3] “Dear Colleagues: Kings County Mediation Rules”, open letter dated August 28, 2019 by NYSTLA President Michele S. Mirman

[4] “Brooklyn Supreme Court expects 20,000 cases to be mediated each year”, Brooklyn Daily Eagle September 4, 2019, by Rob Abruzzese.

[5] “Columbian Lawyers get a crash course in new presumptive mediation program”, Brooklyn Daily Eagle September 6, 2019, by Rob Abruzzese.

New York’s Office of Court Administration has announced its intent to adopt the Uniform Mediation Act (“UMA”) as promulgated by the National Conference of Commissioners of Uniform State Laws,

[https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2019-CivilPractice.pdf]  The new rules regarding mediation will become Article 74 of the CPLR and be known as the ‘Uniform Mediation Act’.  There will be a waiver provision, provided in CPLR §7404


Appellate Division Finds Big Apple Maps Did Not Provide City With Legally Adequate Notice Due to Minor Discrepancy Between Plaintiff’s Testimony and Map’s Sidewalk Defect Description

Typically, in New York City, the Big Apple Pothole and Sidewalk Protection Committee (“Big Apple”)’s maps provide legally sufficient notice to the City of dangerous potholes or sidewalk conditions. See https://www.nystla.org/index.cfm?pg=Pothole for more information. Big Apple was established in 1982 by the New York State Trial Lawyers Association to map the City’s 13,000 miles of sidewalks in New York that were capable of causing personal injury. See https://www.nytimes.com/2009/01/04/nyregion/04pothole.html for more information.

These maps were presented annually to the City of New York Department of Transportation (“DOT”) to provide them with the current status of the various sidewalks in the City. For many years, the Big Apple maps forced the City of New York to pay out millions of dollars in claims for personal injuries sustained on City sidewalks. However, in De Zapata v. City of New York, the Appellate Division of the Supreme Court recently decided that the City did not have the proper notice.

Plaintiff was injured on January 24, 2014 when she fell while walking along a public sidewalk in front of a property located at 96 Hemlock Street, Brooklyn, NY. The Plaintiff filed a Notice of Claim against the City of New York on April 16, 2014, asserting a claim against the City for physical injuries from the hazardous snow and ice that was in the depressed and broken section of the sidewalk.

The City moved to dismiss, arguing that it did not have prior written notice of the alleged icy condition and that, therefore, it lacked constructive notice of any icy condition. In opposition, Plaintiff pointed to her §50-h testimony, General Municipal Law §50-h, photographs, and the map served upon the DOT by Big Apple. Specifically, Plaintiff contended that the Big Apple map constituted prior notice and constructive notice of the defect.

The Administrative Code of the City of New York § 7-201(c), specifically limits the City’s responsibility over municipal streets and sidewalks by allowing for liability only if the City had actual notice of the defect at that location. Katz v. City of New York, 87 N.Y.2d 241, 243. Therefore, the Plaintiff must plead the City had prior written notice of the defect in order to maintain an action against the City. Katz, supra, 87 N.Y.2d at 243. Importantly, “Transitory conditions present on a roadway or walkway such as debris, oil, ice, or sand have been found to constitute potentially dangerous conditions for which prior written notice must be given before liability may be imposed upon a municipality.” Farrell v. City of New York, 49 A.D.3d 806, 807.

With that legal background, the Appellate Division held that the City was entitled to summary judgment and a dismissal of all of Plaintiff’s claims against it. The basis for this decision was that the Big Apple map only indicated that the sidewalk abutting the property located at 96 Hemlock Street, Brooklyn, NY had an “[e]xtended section of raised or uneven sidewalk.” However, the Court held that the true defect, as established throughout the case, was the existence of a “hole,” “ditch,” or “icy condition” that Plaintiff claimed to have caused her fall. Therefore, the Court found that the Big Apple map did not provide adequate notice of the sidewalk’s dangerous condition to the City.


New York Court of Appeals Finds that Plaintiffs Moving for Partial Summary Judgment on Liability are not Required to Prove the Absence of their Own Comparative Negligence

Plaintiff Carlos Rodriguez, a garage utility worker for the New York City Department of Sanitation, was standing between a parked car and a rack of tires when a sanitation truck, which was trying to back into a garage, crashed into the front of the parked car, propelling it into plaintiff and pinning him up against the tires.  The plaintiff sued the City of New York for negligence and moved for partial summary judgment on liability.  The Supreme Court denied plaintiff’s motion and the First Department of the Appellate Division affirmed, finding that plaintiff had failed to make a prima facie showing that he was free of comparative negligence.  The question in Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), was whether plaintiffs moving for partial summary judgment in a comparative negligence action must establish the absence of their own comparative negligence.

The Court of Appeals answered this question in the negative: “To be entitled to partial summary judgment[,] a plaintiff does not bear the double burden of establishing a prima facie case of defendant’s liability and the absence of his or her own comparative fault.”  Rodriguez, 31 N.Y.3d at 315, 324-25.  In so holding, the Court of Appeals recognized that under New York’s comparative negligence statute, a plaintiff’s culpable conduct “shall not bar recovery” because it “is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence”; rather, such conduct only serves to diminish “the amount of damages otherwise recoverable.”  Id. at 317-19.  The Court also noted that since a plaintiff’s culpable conduct is an affirmative defense to be pleaded and proved by the party asserting it, a rule requiring plaintiffs to disprove their culpability would flip the burden of proof and would thus be inconsistent with the plain language of the comparative negligence statute.  See id. at 318.  The Court found that such an outcome would not be consistent with the legislative history of the comparative negligence statute, which indicated that the law was designed to bring “New York law into conformity with the majority rule and represent[ed] the culmination of the gradual but persistent erosion of the rule that freedom from contributory negligence must be pleaded and proven by the plaintiff.”  Id. at 321.

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