Bankruptcy: an overview

It is unavoidable to conclude, from the news, that people in the United States are in pain! Financial pain and hurt!

Tens of millions of people in this country suffer from the strains of debt: Mortgage Debt, Credit Card Debt, Auto Finance Debt, Tax Debt, Student Loan Debt!

For some of these people, filing bankruptcy may be the best option to dig out of a bad situation. A consultation with a competent attorney may be the first step in digging out.

What is bankruptcy?

Bankruptcy is a concept as old as the Bible. In biblical times, in the Jubilee Year, all debts owed to creditors would be forgiven. In our United States Constitution, the privilege of filing for bankruptcy is inscribed. While some people still perceive there being a great stigma in filing for bankruptcy protection, most people recognize that it is not only legally mandated, but is well-rooted in good ethical and moral behavior.

The term “Bankruptcy” refers to a proceeding in a special court called the “United States Bankruptcy Court” in which a person (the “debtor”) files a “petition” and obtains “relief” from the court. The petition is a document which lists four broad categories of information about the debtor:

(a) Assets
(b) Debts
(c) Income
(d) Expenses

The bankruptcy process, an overview:

After the petition is filed with the court, the debtor is interviewed by a court-appointed trustee, who inquires as to the circumstances that led up to bankruptcy and determines whether there are any assets to administer on behalf of creditors. The end result of a bankruptcy case is the “discharge” of debts.

In order to prepare for the decision as to whether bankruptcy is appropriate, the person should assemble various documents, such as tax returns, paystubs, account statements for all debts, appraisals of property, deeds or title to property, and bank statements.

Through the bankruptcy process, the debtor may be permitted to retain property which is “exempt” from creditors. There are various exemptions under law which permit a debtor to keep property, such as household furnishings, homestead exemption in real estate, pensions, and other items. The skilled practitioner will assist in finding exemptions for most or all of the debtor’s property. If property is not exempt, then the trustee can sell it and pay over the sale proceeds to creditors.

For many people, the decision to file bankruptcy is motivated by one or both of the following two factors:

  1. Discharge of debt: Most debts will be discharged. This means that the debtor will no longer be obligated to repay the debts. Some debts are not dischargeable because they are exceptions to the rule, such as domestic support obligations, tax debt, or government fines. However, even some of these seemingly nondischargeable debts may still be discharged. Other debts may be “secured” on property for collateral for the loan, such as a home mortgage or auto finance loan. These debts might not be discharged because the creditor may seek to take back the property.
  2. Automatic stay: The other major reason people file for bankruptcy is to get the benefit of the “Stop” sign – the automatic stay. Sometimes, creditors are calling the debtor day and night to get payments on accounts; sometimes, there is a garnishment on the debtor’s wages; and sometimes, bank accounts are being seized. Once the bankruptcy is filed, creditors are “stayed” or stopped from pursuing the debtor further. For many debtors, this is quite a relief!

There are two general types of bankruptcy cases:

The first type is a Chapter 7 bankruptcy, also known as a “liquidation proceeding” or “straight bankruptcy.” In this case, the debtor turns over to the trustee all non-exempt assets, in order for the assets to be liquidated or sold by the trustee to pay creditors. It is no secret that 95% of personal bankruptcies are “No Asset” cases, in which the debtor has no non-exempt assets to turn over to the trustee.

The second type is a “Reorganization” proceeding, which can be filed under Chapter 9 (municipalities); Chapter 11 (corporate entities and larger-debt cases); Chapter 12 (family farmers); and Chapter 13 (individual wage-earner cases). In a reorganization case, the debtor has non-exempt assets he wants to keep, such as a home, and proposes a plan to repay creditors a certain amount of money over a certain term.

If you have questions concerning bankruptcy, please feel free to contact the law offices of Richard A. Klass, Esq. by phone or e-mail for more information.

by Richard A. Klass, Esq.

———–
copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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Repairs are a covered activity under the Labor Law

Binding precedents of the Court of Appeals, as well as the Appellate Division, First and Second Department hold that a worker assigned by his employer to perform repairs to a damaged or inoperable structure are a covered activity for purposes of the Labor Law, not merely routine maintenance. See Prats v. Port Authority of New York and New Jersey, 100 N.Y.2d 878, 880, 768 N.Y.S.2d 178, 179, 800 N.E.2d 351, 352 (2003); Riccio v. NHT Owners, LLC, 51 A.D.3d 897, 899, 858 N.Y.S.2d 363, 366 (2d Dep’t 2008); Rios v. WVF Paramount 545 Property, LLP, 36 A.D.3d 511, 828 N.Y.S.2d 368, 369 (1st Dep’t 2007); Bruce v. Fashion Square Associates, 8 A.D.3d 1053, 1054, 778 N.Y.S.2d 823, 824 (4th Dep’t 2004); Kerr v. Louisville Housing, Inc., 2 A.D.3d 924, 926, 769 N.Y.S.2d 616, 619 (3d Dep’t 2003); Craft v. Clark Trading Corp., 257 A.D.2d 886, 887, 684 N.Y.S.2d 48, 49-50 (3d Dep’t 1999); Holka v. Mt. Mercy Academy, 221 A.D.2d 949, 949, 634 N.Y.S.2d 310, 311 (4th Dep’t 1995).

Binding precedents from all four Departments of the Appellate Division recognize that welding is a covered activity for purposes of the Labor Law. SeeElkins v. Robbins & Cowan, Inc., 237 A.D.2d 404, 405-406, 655 N.Y.S.2d 563, 564 (2d Dep’t 1997); Allen v. Telergy Network Services, Inc., 52 A.D.3d 1094, 1097, 860 N.Y.S.2d 299, 303 (3d Dep’t 2008); Spadola v. 260/261 Madison Equities Corp., 19 A.D.3d 321, 323, 798 N.Y.S.2d 38, 40 (1st Dep’t 2005); Shields v. General Elec. Co., 3 A.D.3d 715, 717, 771 N.Y.S.2d 249, 252 (3d Dep’t 2004); Baum v. Ciminelli-Cowper Co., Inc., 300 A.D.2d 1028, 1029, 755 N.Y.S.2d 138, 139 (4th Dep’t 2002); Noble v. AMCC Corp., 277 A.D.2d 20, 714 N.Y.S.2d 495, 496 (1st Dep’t 2000).
 
Binding Appellate Division, First Department precedents and precedents in Kings County hold that “[a]n eight feet high chain link fence is a structure within the meaning of Labor Law Section 240(1) and, an injury occurring while in the course of [repairing, erecting or] removing it is a covered activity [citations omitted].” Romero v. Trump Village Apartments Two LLC, 20 Misc.3d 1145(A), 873 N.Y.S.2d 237 (Table) 2008 WL 4274483*1 (Sup.Ct. Kings County September 16, 2008); see Carino v. Webster Place Associates, LP, 45 A.D.3d 351, 352, 845 N.Y.S.2d 60, 61 (1st Dep’t 2007); see Riccio, 51 A.D.3d at 899, 858 N.Y.S.2d at 366; Rios, 36 A.D.3d at 511, 828 N.Y.S.2d at 369), which required covered welding (see Elkins, 237 A.D.2d at 405-406, 655 N.Y.S.2d at 564; Allen, 52 A.D.3d at 1097, 860 N.Y.S.2d at 303; Spadola, 19 A.D.3d at 323, 798 N.Y.S.2d at 40), on a fence, a structure for purposes of the Labor Law. (see Carino, 45 A.D.3d at 352, 845 N.Y.S.2d at 61; Romero, 20 Misc.3d 1145(A), 873 N.Y.S.2d 237 (Table) 2008 WL 4274483 at *1).
 
An assertion that, even if a worker’s activities were otherwise a covered repair, Labor Law § 240(1) would not apply because there was no ongoing construction project would also fail. The Court of Appeals, in its landmark Joblon decision, as well as precedents binding Appellate Division, First and Second Department precedents expressly reject the defendant-appellant’s argument, holding that where the worker is performing otherwise “protected activities under Labor Law § 240(1)”, expressly including repairs, alteration of a structure, or painting, said work “need not have been incidental to the other listed activities, such as construction, repair, or alteration, to be covered [citations omitted].” Loreto v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 455, 790 N.Y.S.2d 190, 191-192 (2d Dep’t 2005) (“The scraping and painting performed by the plaintiff were protected activities under Labor Law § 240(1) and need not have been incidental to the other listed activities, such as construction, repair, or alteration, to be covered (see De Oliveira v. Little John’s Moving, 289 A.D.2d 108, 734 N.Y.S.2d 165, citing Perez v. Spring Cr. Assocs., 265 A.D.2d 314, 696 N.Y.S.2d 468; Livecchi v. Eastman Kodak Co., 258 A.D.2d 916, 685 N.Y.S.2d 515).”); see Joblon v. Solow, 91 N.Y.2d 457, 463-464, 672 N.Y.S.2d 286, 289-290, 695 N.E.2d 237, 240-241 (1998); Blair v. Cristani, 296 A.D.2d 471, 472, 745 N.Y.S.2d 468, 468-469 (2d Dep’t 2002); De Oliveira v. Little John’s Moving, Inc., 289 A.D.2d 108, 734 N.Y.S.2d 165, 166 (1st Dep’t 2001) (“The scraping performed by plaintiff is encompassed within the term “painting” in section 240(1) (see, Perez v. Spring Creek Assocs., 265 A.D.2d 314, 696 N.Y.S.2d 468; Livecchi v. Eastman Kodak Co., 258 A.D.2d 916, 685 N.Y.S.2d 515), and need not have been incidental to the other listed activities, such as construction, repair or alteration, to be covered (cf., Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284; Chapman v. International Bus. Machs., 253 A.D.2d 123, 127, 686 N.Y.S.2d 888).”); Cornacchione v. Clark Concrete Co., Inc., 278 A.D.2d 800, 801, 723 N.Y.S.2d 572, 573 (4th Dep’t 2000); Chapman v. International Business Machines Corporation, 253 A.D.2d 123, 127, 686 N.Y.S.2d 888, 891-892 (3d Dep’t 1999) (“We note that, under this statute, ‘cleaning * * * of a building or structure’ is listed in the alternative to a series of other covered activity, i.e. covered activities include the ‘erection, demolition, repairing, altering, painting, cleaning or pointing of a building’ (Labor Law Section 240[1] [emphasis supplied] ). In our view, under a plain reading of the statute, there is no requirement or condition that commercial cleaning be incidental to the other listed activities, such as construction, repair or alteration activity, to be covered.”). In its landmark decision in Joblon, 91 N.Y.2d at 463-464, 672 N.Y.S.2d at 289-290, 695 N.E.2d at 240-241, the Court of Appeals, expressly rejecting this argument, held as follows:

“Thus, defendants suggest that a guiding principle for courts should be to examine the context of the work leading to the injury, and only when it is performed as part of a building construction job should Labor Law § 240(1) liability attach.
Such a rule would, of course, ignore prior holdings that workers injured while cleaning a railway car (Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra ), repairing an electrical sign (Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318) or painting a house (Rivers v. Sauter, 26 N.Y.2d 260, 309 N.Y.S.2d 897, 258 N.E.2d 191) come within the ambit of the statute even though they were not working at a building construction site. Furthermore, we have already defined a ‘structure,’ for purposes of Labor Law § 240(1), as ‘’any production or piece of work artificially built up or composed of parts joined together in some definite manner’’ (Lewis Moors v. Contel of N.Y., 78 N.Y.2d 942, 943, 573 N.Y.S.2d 636, 578 N.E.2d 434). Now to limit the statute’s reach to work performed on a construction site would eliminate possible recovery for work performed on many structures falling within the definition of that term but found off construction sites (see, e.g., id. [telephone pole]; Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 606 N.Y.S.2d 127, 626 N.E.2d 912, supra [railway car] ).”

 
In Cornacchione, 278 A.D.2d at 801, 723 N.Y.S.2d at 573, the Appellate Division, Fourth Department held that other statutorily enumerated activities, such as painting or repairs, need not be incidental to other listed activities, such as construction or renovation, to fit within Labor Law §§ 240(1) or 241(6):

“Finally, we conclude that the painting work being performed by plaintiff’s decedent was an activity covered by Labor Law § 240(1) and § 241(6). “[T]here is no requirement or condition that [painting] be incidental to the other listed activities, such as construction, repair or alteration activity, to be covered” (Chapman v. International Bus. Machs., 253 A.D.2d 123, 127, 686 N.Y.S.2d 888; see also, Bustamante v. Chase Manhattan Bank, 241 A.D.2d 327, 659 N.Y.S.2d 284). We therefore modify the order in appeal No. 1 by denying the motion of Piscitell in part and reinstating the Labor Law § 241(6) claim against it.”

 
In Blair, 296 A.D.2d at 472, 745 N.Y.S.2d at 468-469, the Appellate Division, Second Department, citing Cornacchione, 278 A.D.2d at 801, 723 N.Y.S.2d at 573, identically held that painting, one of the statutorily enumerated activities, like performing repairs, was a covered activity for purposes of Labor Law § 241(6), independent of any construction or renovation:

“The plaintiff is also entitled to summary judgment on the cause of action pursuant to Labor Law § 241(6) and the branch of the defendant’s motion which was to dismiss that cause of action should have been denied. Contrary to the determination of the Supreme Court, the activity in which the plaintiff was engaged when he was injured falls within the scope of Labor Law § 241(6) (see 12 NYCRR 23-1.4[b][13]; Cornacchione v. Clark Concrete Co., 278 A.D.2d 800, 723 N.Y.S.2d 572; Vernieri v. Empire Realty Co., 219 A.D.2d 593, 595, 631 N.Y.S.2d 378).”

 
It is irrelevant whether repair work, a statutorily enumerated activity, took place in a construction context or incidental to a construction or renovation project (see Blair, 296 A.D.2d at 472, 745 N.Y.S.2d at 468-469; Cornacchione, 278 A.D.2d at 801, 723 N.Y.S.2d at 573), as repairing a broken fence constitutes a statutorily enumerated covered repair for purposes of both Labor Law § 240(1) (see Beehner, 3 N.Y.3d at 752, 821 N.E.2d at 941, 788 N.Y.S.2d at 637; Prats, 100 N.Y.2d at 880, 882, 768 N.Y.S.2d at 179, 181, 800 N.E.2d at 352, 354; Juchniewicz, 46 A.D.3d at 624, 848 N.Y.S.2d at 257-258; Bruce, 8 A.D.3d at 1054, 778 N.Y.S.2d at 824; Franco, 280 A.D.2d at 409-410, 721 N.Y.S.2d at 5).
by Richard A. Klass, Esq.

———–
copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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Klass in the News: Eataly sued by Yoko Ono’s public relations agent, who restaurant rep says was ‘visibly intoxicated’

Kip Kouri claims he was ‘thrown’ through a plate glass window by bouncers who also made homophobic remarks. In a statement, restaurant spokeswoman Cristina Villa said Kouri was ‘acting as a potential threat to others.’

By Barbara Ross and Corky Siemaszko
New York Daily News
Published: August 29, 2014, 11:29am
Updated: August 30, 2014, 12:14am

What a pane!

Yoko Ono’s flack claims he was “thrown” through a plate glass window by three bigoted bouncers at celebrity chef Mario Batali’s eatery Eataly, and is now suing the operation for $10 million.

Kip Kouri claims in court papers the strongmen called him a “p—y” and a “f—-t” and that he suffered a severe gash on one leg that required 60 stitches to close.

“It took a significant amount of force to do what they did,” Kouri’s lawyer, Richard Klass, said Friday. “This was a thick window.”…(more at http://nydn.us/1zRwefP)

———–
copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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Pay the Worker on the Day He (or She) Works

We can do it!, ca. 1942 - ca. 1943; Creator(s): Office for Emergency Management. War Production Board.

This guiding principle is so important that it is laid out in several passages throughout the Bible. It is incumbent upon an employer to pay the wages of its employees on a timely basis. If the employer does not pay its employees, New York State law provides employees with significant remedies, including an entitlement to monetary penalties against the employer over and above the unpaid wages and the recovery of attorney’s fees.

Some teachers in a private religious school were not paid their salaries for several months. The school’s administration claimed that, due to the nonpayment of tuition by a large number of the parent body, the school could not pay these teachers. In the meantime, however, the school continued to pay some of its teachers, business-as-usual. One of the teachers who was not paid her salary hired Richard A. Klass, Your Court Street Lawyer, to help recover her unpaid wages.

100% liquidated damages under NY’s labor law

An action was brought on behalf of the teacher against the private religious school for the unpaid wages. The complaint also sought the additional amount of liquidated damages that may be awarded to an employee for wages owed by an employer on an unpaid wage claim. The entitlement to this additional element of damages (“equal to 100% of the total amount of the wages found to be due”) and reasonable attorney’s fees are provided for in New York State Labor Law §198(1-a). Specifically, Labor Law §198(1-a) provides, in relevant part:

In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney’s fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.

Under the above statute, an employer must be able to prove that it had a “good faith basis” to believe that its failure to pay its employees was in compliance with the law in order to avoid an award of liquidated damages. In this case, it was urged that the school had no valid basis for not paying its teachers.

Religious school can be sued in secular court

The religious school argued that the Establishment Clause of the United States Constitution (separation of church and state) barred the government’s excessive entanglement in religion—in essence, stating that this dispute belonged in a rabbinical court. In response to this argument, it was urged that this case was not about religion; it was squarely and fundamentally about the breach of an employment contract.

Courts can apply ‘neutral principles of law’ to dispute

Respecting the place of religion in American society, courts will generally decline to involve themselves in disputes involving religious institutions except under limited circumstances. New York State’s highest court, the Court of Appeals, in Congregation Yetev Lev D’Satmar, Inc. v. Kahan, held that where the matter to be decided does not involve questions of discipline and doctrine but is a temporal matter, a court may inquire and consider the same in the light of the civil contractual rights and obligations of the parties. The Court of Appeals stated, “Civil disputes involving religious parties or institutions may be adjudicated without offending the First Amendment as long as neutral principles of law are the basis for their resolution (see First Presbyterian Church of Schenectady v. United Presbyterian Church in the United States of America). The “neutral principles of law” approach requires the court to apply objective, well-established principles of secular law to the issues.”
In Saffra v. Rockwood Park Jewish Center, Inc., the court held that issues surrounding a rabbi’s employment agreement with a synagogue were not an ecclesiastical matter but rather a matter dealing with a “mundane” contract to be construed by a court. New York law recognizes that “a religious corporation is liable on its contracts the same as any other corporation and, generally, questions concerning the contractual liability of a religious corporation are controlled by the principles governing the contractual powers and liability of corporations generally.” See, 92 N.Y. Jur.2d Religious Organizations, §16. Accordingly, the fact that the school was a religious school would be irrelevant to its liability for breaching its contractual obligations to its teachers for unpaid wages.
There were no religious issues or doctrines presented in this case; the action was brought solely to enforce the teacher’s contract rights to recover her unpaid wages for the period of time that she had already performed under her teaching contract. Faced with the arguments put forth by the teacher, the school relented and paid over $23,000 of back wages owed to the teacher, along with all of her legal fees and expenses.
by Richard A. Klass, Esq.

———–
copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

Credits: Photo of Richard Klass by Robert Matson, copyr. Richard A. Klass, 2011.
Marketing services by The Innovation Works, Inc. www.TheInnovationWorks.com.

Image on page one: We can do it!, ca. 1942 – ca. 1943; Creator(s): Office for Emergency Management. War Production Board. 

R. A. Klass
Your Court Street Lawyer

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Liability for not having safety devices

Binding precedents from all four Departments of the Appellate Division, including Second Department precedents hold that where it is uncontested that the plaintiff was injured as a result of falling from a ladder, and “at the time of his fall, there were no safety belts, nets, or other safety devices in the area, and he was not equipped with any safety devices. Under the circumstances, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action pursuant to Labor Law § 240(1)” Denis v. City of New York, 54 A.D.3d 803, 803-804, 863 N.Y.S.2d 773, 773-774 (2d Dep’t 2008); see Lesisz v. Salvation Army, 40 A.D.3d 1050, 837 N.Y.S.2d 238, 240 (2d Dep’t 2007); Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459, 459-460 (1st Dep’t 2004).

In Velasco, 8 A.D.3d at 89, 779 N.Y.S.2d at 459-460, the Appellate Division, First Department expressly held as follows, directly refuting defense counsel’s ridiculous claim that the subject precedents do not stand for this proposition:

“Defendants argue that the ladder was in no way defective, and that the only cause of the accident was plaintiff’s own negligence in helping to set up the ladder in soil and then using it even though he knew that his co-worker was not holding it. The argument overlooks plaintiff’s evidence that no safety devices were provided to protect him in the event the ladder slipped. Given an unsecured ladder and no other safety devices, plaintiff cannot be held solely to blame for his injuries (see Davis v. Selina Dev. Corp., 302 A.D.2d 304, 305, 754 N.Y.S.2d 872; Bonanno v. Port Auth., 298 A.D.2d 269, 270, 750 N.Y.S.2d 7; cf. Blake v. Neighborhood Hous. Servs., 1 N.Y.3d 280, 290, 771 N.Y.S.2d 484, 803 N.E.2d 757). Plaintiff’s use of the ladder without his co-worker present amounted, at most, to comparative negligence, which is not a defense to a section 240(1) claim (see Hernandez v. 151 Sullivan Tenant Corp., 307 A.D.2d 207, 208, 762 N.Y.S.2d 603).”

In Denis, 54 A.D.3d at 803-804, 863 N.Y.S.2d at 773-774, the express language of the Appellate Division, Second Department also directly contradicts the defense counsel’s specious contention:

“As the plaintiff was removing one of the guard frames, the ladder began to shake, causing him to fall to the ground. In his affidavit, the plaintiff asserted that at the time of his fall, there were no safety belts, nets, or other safety devices in the area, and he was not equipped with any safety devices. Under the circumstances, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability on the cause of action pursuant to Labor Law § 240(1) ( see Ricciardi v. Bernard Janowitz Constr. Corp., 49 A.D.3d 624, 853 N.Y.S.2d 373; Argueta v. Pomona Panorama Estates, Ltd.,39 A.D.3d 785, 786, 835 N.Y.S.2d 358; Boe v. Gammarati, 26 A.D.3d 351, 351-352, 809 N.Y.S.2d 550; Loreto v. 376 St. Johns Condominium, Inc., 15 A.D.3d 454, 455, 790 N.Y.S.2d 190; Guzman v. Gumley-Haft, Inc., 274 A.D.2d 555, 556, 712 N.Y.S.2d 45).”

Appellate Division, First, Second and Third Department precedents hold that a fall from a ladder or scaffold precipitated by the materials with which plaintiff was working or type of work that the plaintiff was performing, including (1) an electrician being shocked by live wires, (2) a person who fell from a ladder while working on a fence, or (3) a carpenter installing a sign falling from a ladder when the sign suddenly and unexpectedly came loose, sets forth a prima facie violation of the Labor Law, as “it is plain that the ladder he used was not an adequate safety device for the task he was performing, rendering defendants, who admittedly provided no safety devices, absolutely liable under section 240(1) [citations omitted].” Kadoic v. 1154 First Ave. Tenants Corp., 277 A.D.2d 66, 716 N.Y.S.2d 386, 387 (1st Dep’t 2000); see Castillo v. 62-25 30th Ave. Realty, LLC, 47 A.D.3d 865, 865-866, 850 N.Y.S.2d 616, 617-618 (2d Dep’t 2008); Lodato v. Greyhawk North America, LLC, 39 A.D.3d 491, 492-494, 834 N.Y.S.2d 242, 244-245 (2d Dep’t 2007); Quackenbush v. Gar-Ben Associates, 2 A.D.3d 824, 825, 769 N.Y.S.2d 387, 388 (2d Dep’t 2003); Gange v. Tilles Inv. Co., 220 A.D.2d 556, 558, 632 N.Y.S.2d 808, 810 (2d Dep’t 1995); Carino v. Webster Place Associates, LP, 45 A.D.3d 351, 352, 845 N.Y.S.2d 60, 61 (1st Dep’t 2007); Weber v. 1111 Park Ave. Realty Corp., 253 A.D.2d 376, 378, 676 N.Y.S.2d 174, 176 (1st Dep’t 1998); Quinlan v. Eastern Refractories Co., Inc., 217 A.D.2d 819, 820, 629 N.Y.S.2d 819, 820 (3d Dep’t1995).

 
In Gange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810, the Appellate Division, Second Department held that an electrician who fell from a ladder after being shocked was entitled to recover under Labor Law § 240(1), as the ladder was an insufficient safety device to prevent him from falling after he was shocked:

“Furthermore, the fact that the plaintiff fell off of the ladder only after he sustained an electric shock does not preclude recovery under Labor Law § 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).”

In Quackenbush, 2 A.D.3d at 825, 769 N.Y.S.2d at 388, the Appellate Division, Second Department explained its rationale in Gange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810, as follows:

“The unrebutted evidence adduced at trial by the plaintiff, an electrician, demonstrated that the defendants, which opted not to call any witnesses or present any evidence at trial, did not provide him with proper protection from height-related dangers connected with his work, and that the ladder on which he worked was inadequate to prevent him from falling 14 feet to the floor after sustaining an electric shock in the course of connecting a ceiling fixture ( see Izrailev v. Ficarra Furniture of Long Is., 70 N.Y.2d 813, 815, 523 N.Y.S.2d 432, 517 N.E.2d 1318).”

In Weber, 253 A.D.2d at 378, 676 N.Y.S.2d at 176, the Appellate Division, First Department expressly adopted the Second Department’s rationale fromGange, 220 A.D.2d at 558, 632 N.Y.S.2d at 810:

Gange v. Tilles Investment Co., 220 A.D.2d 556, 632 N.Y.S.2d 808, is directly on point. There, the Appellate Division, Second Department stated (at 558, 632 N.Y.S.2d 808), ‘the fact that the plaintiff fell off the ladder only after he sustained an electric shock does not preclude recovery under Labor Law § 240(1) for injuries sustained as a result of the fall from the ladder (see, Izrailev v. Ficarra Furniture, 70 N.Y.2d 813, 523 N.Y.S.2d 432, 517 N.E.2d 1318).’”

In Weber, 253 A.D.2d at 378, 676 N.Y.S.2d at 176, the Appellate Division, First Department directly addressed and rejected the argument of the defendant’s herein, holding “[r]egardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing and was a proximate cause of the fall and resulting injuries”:

“Plaintiff was entitled to partial summary judgment on his Labor Law § 240(1) cause of action, where he was injured when he fell from a ladder while in the course of removing an eight-foot high fence at a construction site. Regardless of the method employed by plaintiff to remove the fence, the ladder provided to him was not an adequate safety device for the task he was performing and was a proximate cause of the fall and resulting injuries (see Ben Gui Zhu v. Great Riv. Holding, LLC., 16 A.D.3d 185, 791 N.Y.S.2d 43 [2005]; Dunn v. Consolidated Edison Co. of N.Y., Inc., 272 A.D.2d 129, 707 N.Y.S.2d 420 [2000] ).”

Binding Appellate Division, First, Second and Fourth Department precedents expressly reject the defense that plaintiff’s negligently performing work outside exposed to the elements, including rain (as instructed by his employer) where it was foreseeable that this type of accident could occur, was the sole proximate cause of the accident, instead holding “[e]vidence of rain, or other ‘concurrent cause’, at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her § 240(1) claim [citations omitted]. If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants’ negligence in failing to provide the statutorily-prescribed safety measures.” Robinson v. NAB Const. Corp., 210 A.D.2d 86, 86-87, 620 N.Y.S.2d 337, 338-339 (1st Dep’t 1994); see Shipkoski v. Watch Case Factory Associates, 292 A.D.2d 587, 588-589, 741 N.Y.S.2d 55, 56-57 (2d Dep’t 2002) (Holding that “to establish a prima facie case pursuant to Labor Law § 240(1), a plaintiff must demonstrate that the risk of injury from an elevation-related hazard was foreseeable, and that an absent or defective protective device of the type enumerated in the statute was a proximate cause of the injuries alleged (see Felker v. Corning, Inc., 90 N.Y.2d 219, 660 N.Y.S.2d 349, 682 N.E.2d 950; Misseritti v. Mark IV Constr. Co., supra)” and this burden is met upon evidence of hazards caused by “neglect, vandalism, and the elements that the plaintiff’s work on the third floor exposed him to a foreseeable risk of injury from an elevation-related hazard, and whether the absence of a type of protective device enumerated under Labor Law § 240(1) was a proximate cause of his injuries (see Gold v. NAB Constr. Corp., 288 A.D.2d 434, 733 N.Y.S.2d 681; Norton v. Park Plaza Owners Corp., 263 A.D.2d 531, 694 N.Y.S.2d 411; Avelino v. 26 Railroad Ave., 252 A.D.2d 912, 676 N.Y.S.2d 342).”); Callan v. Structure Tone, Inc., 52 A.D.3d 334, 335, 860 N.Y.S.2d 62, 63 (1st Dep’t 2008) (“Plaintiff worker, an electrician employed by third-party defendant subcontractor, was injured while installing ceiling lights over a weekend in an unventilated room where the temperature was estimated at over 100 degrees; he became dizzy from the heat, then nauseous, and fell from near the top of a 10-foot ladder. The worker recalled that as he attempted to reach down to grab hold of the ladder to stabilize himself, the ladder wobbled, he passed out, and both he and the ladder toppled over. Defendant was the general contractor at the work site, and deposition testimony of its project foreman corroborated the worker’s testimony that prior complaints of excessive heat during weekend duty had gone unheeded. The unrefuted evidence of excessively hot work conditions, of which defendant had notice and control; the foreseeable consequence to workers who might suffer heat-related physical symptoms under such circumstances; and the lack of proper safety equipment afforded to elevated workers in light of these conditions, provided a basis for finding defendant strictly liable under Labor Law § 240(1) ( Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 684 N.Y.S.2d 523 [1999]; see also Cruz v. Turner Constr. Co., 279 A.D.2d 322, 720 N.Y.S.2d 10 [2001]).”); Reisch v. Amadori Const. Co., Inc., 273 A.D.2d 855, 857, 709 N.Y.S.2d 726, 728-729 (4th Dep’t 2000) (“We also reject Amadori’s contention that, because plaintiff knew the plank was wet and complained about its safety before using it, there is an issue of fact whether the absence of safety devices was the sole proximate cause of plaintiff’s injuries. “It is well settled that the [plaintiff’s] contributory negligence is not a defense to a claim based on Labor Law § 240(1)” (Stolt v. General Foods Corp., 81 N.Y.2d 918, 920, 597 N.Y.S.2d 650, 613 N.E.2d 556; see also, Robinson v. NAB Constr. Corp.,210 A.D.2d 86, 86-87, 620 N.Y.S.2d 337).”); Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 515-516, 684 N.Y.S.2d 523, 524 (1st Dep’t 1999) (“We note that even if the testimony of defendants’ expert witness were sufficient to raise a fact question on the cause of plaintiff’s fall, partial summary judgment would still have been properly granted to plaintiffs because defendants failed to provide proper protection to plaintiff, e.g., a scaffold, in the event he became overcome by heat, which was foreseeable under the circumstances (see, Gordon v. Eastern Ry. Supply, Inc., 82 N.Y.2d 555, 562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Robinson v. NAB Constr. Corp., 210 A.D.2d 86, 620 N.Y.S.2d 337).”).

 
In Robinson, 210 A.D.2d at 86-87, 620 N.Y.S.2d at 338-339, the Appellate Division, First Department expressly rejected the contention that a worker’s performing assigned work outside in the rain was the sole proximate cause of his fall from an elevated worksite, holding:

“Evidence of rain, or other “concurrent cause”, at the time of the accident does not create a triable issue of fact as to proximate cause where plaintiff has met her burden in establishing her § 240(1) claim (see, Iannelli v. Olympia & York Battery Park Co., 190 A.D.2d 775, 776, 593 N.Y.S.2d 553, citing Joyce v. Rumsey Realty Corp., 17 N.Y.2d 118, 122, 269 N.Y.S.2d 105, 216 N.E.2d 317). If anything, the readily foreseeable occurrence of rainy conditions at an outdoor construction site highlights defendants’ negligence in failing to provide the statutorily-prescribed safety measures.”

In the instant action, the uncontroverted evidence shows that plaintiff fell when he was shocked by the welding equipment he was forced to use outside in the rain without any shelter being provided (see Shipkoski, 292 A.D.2d at 588-589, 741 N.Y.S.2d at 56-57; Callan, 52 A.D.3d at 335, 860 N.Y.S.2d at 63;Robinson, 210 A.D.2d at 86-87, 620 N.Y.S.2d at 338-339), plaintiff shook, the ladder shifted, sank into the mud, and he and the ladder fell to the ground as a result of the failure to provide any adequate safety devices in violation of Labor Law § 240, so plaintiff has demonstrated a prima facie entitlement to summary judgment on his Labor Law 240(1) cause of action. See id.; Kadoic, 277 A.D.2d at 66, 716 N.Y.S.2d at 387; Davis, 302 A.D.2d at 305, 754 N.Y.S.2d at 872; Costello, 305 A.D.2d at 447, 761 N.Y.S.2d at 80-81; Peter, 300 A.D.2d at 289-290, 750 N.Y.S.2d at 772-773.

 
The failure to provide safety devices may be a proximate cause of the plaintiff’s injuries sufficient to remove the “sole proximate cause” defense from the case and support the grant of summary judgment to an injured worker. See Denis v. City of New York, 54 A.D.3d 803, 803-804, 863 N.Y.S.2d 773, 773-774 (2d Dep’t 2008); Boe v. Gammarati, 26 A.D.3d 351, 352, 809 N.Y.S.2d 550, 550-551 (2d Dep’t 2006); Brandl v. Ram Builders, Inc., 7 A.D.3d 655, 777 N.Y.S.2d 511, 511-512 (2d Dep’t 2004); Wallace v. Stonehenge Group, Ltd., 1 A.D.3d 589, 767 N.Y.S.2d 450, 451 (2d Dep’t 2003); Ranieri v. Holt Construction Corp., 33 A.D.3d 425, 822 N.Y.S.2d 509, 510 (1st Dep’t 2006) (“Plaintiff, a sheet metal worker employed by a subcontractor, was injured when he fell from an unsecured ladder with no safety devices provided to protect him. This activity fell within the ambit of Labor Law § 240(1), and the failure to supply plaintiff with a properly secured ladder or any safety devices was a proximate cause of his fall (see Samuel v. Simone Dev. Co., 13 A.D.3d 112, 786 N.Y.S.2d 163 [2004]; Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 779 N.Y.S.2d 459 [2004]). There is no reasonable view of the evidence to support defendants’ contention that plaintiff was the sole proximate cause of his injury, nor is there a triable question of fact as to whether he was solely to blame.”); Peralta v. American Telephone And Telegraph Company, 29 A.D.3d 493, 494, 816 N.Y.S.2d 436, 436-437 (1st Dep’t 2006) (“Unrefuted evidence that the unsecured ladder moved, combined with evidence that no other safety devices were provided to plaintiff, warranted a finding that the owners were absolutely liable under Labor Law § 240(1), notwithstanding claims of comparative negligence (see Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 779 N.Y.S.2d 459 [2004] ), or unsupported claims that plaintiff’s conduct was the sole proximate cause of her injuries.”); Morales v. Spring Scaffolding, Inc., 24 A.D.3d 42, 47-49, 802 N.Y.S.2d 41, 44-46 (1st Dep’t 2005); Serrano v. 432 Park South Realty Co., LLC, 8 A.D.3d 202, 779 N.Y.S.2d 198, 199 (1st Dep’t 2004); Velasco v. Green Wood Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459 (1st Dep’t 2004); Morin v. Machnick Builders, Ltd., 4 A.D.3d 668, 669-670, 772 N.Y.S.2d 388, 390-391 (3d Dep’t 2004); Bonanno v. Port Of Authority Of New York And New Jersey, 298 A.D.2d 269, 270, 750 N.Y.S.2d 7, 8 (1st Dep’t 2002) (“No other safety devices were provided to prevent the fall. Nor does the evidence suggest that plaintiff’s own actions were the sole proximate cause of his injury. Thus, plaintiff, as a matter of law, was entitled to recover on his Labor Law § 240(1) claim. Plaintiff was under no obligation to show that the ladder was defective in some manner (Klein v. City of New York, 222 A.D.2d 351, 635 N.Y.S.2d 634, affd. 89 N.Y.2d 833, 652 N.Y.S.2d 723, 675 N.E.2d 458) or to prove that the floor was slippery to make out a Labor Law § 240(1) violation. It was sufficient to show the absence of adequate safety devices to prevent the ladder from sliding or to protect plaintiff from falling. (Orellano v. 29 East 37th Street Realty Corp., 292 A.D.2d 289, 740 N.Y.S.2d 16.)”).

In Morin, 4 A.D.3d at 669-670, 772 N.Y.S.2d at 390-391, the Appellate Division held as follows, directly substantiating plaintiff’s position and directly refuting defense counsel’s specious contention:

“The only elevation related safety device provided to plaintiff was the extension ladder. No ropes or other safety devices were provided to secure the ladder and prevent it from slipping, nor were harnesses provided to prevent plaintiff from hitting the ground if the ladder did slip…. Accordingly, plaintiff established that defendants violated Labor Law § 240(1) and such violation was a cause of his injury (see Tavarez v. Weissman, 297 A.D.2d 245, 246 247 [2002]; Squires v. Robert Marini Bldrs., supra at 808 809; Dennis v. Beltrone Constr. Co., 195 A.D.2d 688, 689 [1993]). As this statutory violation was a proximate cause of plaintiff’s fall, plaintiff’s own actions cannot be the sole proximate cause of his fall (see Blake v. Neighborhood Hous. Servs. of N.Y. City, supra at * 6 n 8).”

Similarly, in Serrano, 8 A.D.3d at 202, 779 N.Y.S.2d at 199, the Appellate Division, First Department held as follows:

“Plaintiff established that his accident was attributable to a lack of proper safety equipment and/or the failure to secure the ladder upon which he was working. Even if plaintiff had been negligent in continuing his work in his coworker’s momentary absence, no triable issue would therefore be raised as to whether liability should be imposed upon defendant pursuant to Labor Law § 240(1), since such negligence would not be susceptible of characterization as the sole proximate cause of plaintiff’s harm (see Dasilva v. A.J., Contr. Co., 262 A.D.2d 214).”

The Second Department reached the identical result in Wallace, 1 A.D.3d at 589, 767 N.Y.S.2d at 451:

“The plaintiffs established their entitlement to partial judgment as a matter of law on the issue of liability by presenting evidence that no safety devices were provided (see Taeschner v. M & M Restorations, 295 A.D.2d 598, 745 N.Y.S.2d 41). In opposition, the defendants failed to raise a triable issue of fact regarding liability. While a plaintiff cannot recover where his or her conduct was the sole proximate cause of his or her injuries (see e.g. Lozada v. GBE Contr. Corp., 295 A.D.2d 482, 744 N.Y.S.2d 464), that defense was not available to the defendants under the circumstances of this case (seeVacanti v. Habasit Globe, 283 A.D.2d 935, 724 N.Y.S.2d 240; DiVincenzo v. Tripart Dev., 272 A.D.2d 904, 709 N.Y.S.2d 271).”; see also Denis, 54 A.D.3d at 803-804, 863 N.Y.S.2d at 773-774 (quoted above in paragraph 25).

Defendant also claims that plaintiff has failed to demonstrate which safety devices could have been employer to prevent his accident, purportedly preventing plaintiff from proving a prima facie entitlement to summary judgment. This contention is both factually and legally incorrect. The defendant’s argument is legally deficient, as binding Appellate Division, First and Third Department precedents which hold “[t]he plaintiff is not ‘required to present evidence as to which particular safety devices would have prevented his injury’ [citations omitted].” Cangialosi v. Gotham Const. Co., LLC, 865 N.Y.S.2d 892, 897-898, 22 Misc.3d 189, 193 (Sup.Ct. Kings County 2008) (Jack M. Battaglia, J.); see Cody v. State, 52 A.D.3d 930, 931, 859 N.Y.S.2d 316, 318 (3d Dep’t 2008) (“Nor was claimant required to prove what additional safety devices would have prevented his injury (see Noble v. AMCC Corp., 277 A.D.2d 20, 21, 714 N.Y.S.2d 495 [2000]). Thus, defendant violated Labor Law § 240(1) as a matter of law (see Kyle v. City of New York, 268 A.D.2d at 196-197, 707 N.Y.S.2d 445; Reed v. State of New York, 249 A.D.2d 719, 720, 671 N.Y.S.2d 820 [1998]), and this violation clearly was a proximate cause of claimant’s injury (see Meyers v. State of New York, 30 A.D.3d at 928, 817 N.Y.S.2d 735; Pearl v. Sam Greco Constr., Inc., 31 A.D.3d 996, 997-998, 819 N.Y.S.2d 193 [2006]).”); Noble v. AMCC Corp., 277 A.D.2d 20, 21, 714 N.Y.S.2d 495, 496-497 (1st Dep’t 2000).

 
In Noble, 277 A.D.2d at 21, 714 N.Y.S.2d at 496-497, a precedent relied on by defendant in its memorandum of law in opposition to plaintiff’s cross-motion, the Appellate Division, First Department expressly rejected the defendant’s contention:

“Assuming plaintiff’s slide down the boiler was caused by his hitting his head on an overhead pipe, the cramped quarters in which he was working made such an occurrence foreseeable, and thus required the provision of a safety device (see, Gordon v. Eastern Ry. Supply, 82 N.Y.2d 555, 561-562, 606 N.Y.S.2d 127, 626 N.E.2d 912; Arce v. 1133 Bldg. Corp., 257 A.D.2d 515, 516, 684 N.Y.S.2d 523). Moreover, any comparative negligence by plaintiff would not be a defense to the section 240(1) violation in failing to provide a safety device (see, Ortiz v. SFDS Dev., 274 A.D.2d 341, 342, 712 N.Y.S.2d 94, 96, citing, inter alia, Stolt v. General Foods Corp., 81 N.Y.2d 918, 597 N.Y.S.2d 650, 613 N.E.2d 556). Nor was plaintiff required to present evidence as to which particular safety devices would have prevented his injury (see, Guillory v. Nautilus Real Estate, 208 A.D.2d 336, 338, 624 N.Y.S.2d 110, appeal dismissed and lv. denied 86 N.Y.2d 881, 635 N.Y.S.2d 943, 659 N.E.2d 766).”

by Richard A. Klass, Esq.



———–
copyr. 2014 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
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