Kiss v. Clinton Green North, LLC

Background

Tibor Kiss alleged that Clinton Green North, LLC, Dermot Clinton Green, LLC, AvalonBay Communities, Inc. (collectively, the “Owner Defendants”), and Judy Painting Corp. violated New York Labor Law §§ 240(1), 241(6), and 200 and committed common-law negligence. The claims arose from Kiss’s fall while painting apartment unit 10A at a property owned by the Owner Defendants.

The Owner Defendants had contracted with Judy Painting to perform wall repair and painting work. Judy Painting subcontracted the work to Z&Z Services, Inc., an affiliate. Z&Z Services hired and paid Kiss, and the Workers’ Compensation Board determined that he was a Z&Z Services employee. Z&Z Services paid him workers’ compensation benefits.

On September 12, 2017, Kiss used an approximately four-foot A-frame ladder in the bathroom of unit 10A. He testified that he inspected the ladder, confirmed that its hinges were locked, and found that its legs were stable on the tile floor. He was working alone. The ladder did not collapse, but Kiss fell and suffered serious injuries.

Motions and Applicable Standard

Kiss and Judy Painting filed cross-motions for summary judgment. Summary judgment is appropriate when the evidence shows no genuine dispute about any important fact and the moving party is entitled to judgment under the law. On cross-motions, the court considers each motion separately and views the evidence favorably to the party opposing that motion.

Kiss sought summary judgment on his Labor Law § 240(1) claim against Judy Painting and the Owner Defendants and on his Labor Law § 200 claim against Judy Painting. Judy Painting sought summary judgment on all claims against it, arguing that Kiss was its special employee, that it was not a proper Labor Law defendant, and that the undisputed facts defeated the claims.

Special-Employee Issue

New York workers’ compensation law generally prevents an employee who received workers’ compensation benefits from suing the employer for damages from the same workplace injury. The protection can also apply to a “special employer”—a company that temporarily assumes control over a worker supplied by the worker’s general employer.

Judy Painting was not entitled to summary judgment on this ground. The undisputed facts showed that Judy Painting did not pay Kiss or provide his equipment, and that Kiss worked alone without supervision or direction. It remained disputed whether Richard Gyurus assigned Kiss’s work for Judy Painting or for Z&Z Services, and the record did not establish whether Judy Painting had the power to discharge him. A reasonable jury could therefore find that Kiss was not Judy Painting’s special employee. His practice of emailing a Judy Painting address to receive payment from Z&Z Services did not establish that Judy Painting had assumed control over him.

Judy Painting as a Labor Law Defendant

The court held that Judy Painting was a proper defendant under New York Labor Law §§ 240(1), 241(6), and 200 because it was an agent of the Owner Defendants. For these statutes, an agent is a party that has authority to supervise and control the relevant work, even if it does not actually exercise that authority.

The Owner Defendants hired Judy Painting to complete work at the property, and nothing in the record showed that the Owner Defendants retained or exercised authority to supervise and control the apartment painting. The court concluded that Judy Painting had authority delegated by the Owner Defendants to supervise and control Kiss’s painting assignment and was therefore subject to liability under the labor laws.

Labor Law § 240(1)

The court denied both sides’ motions for summary judgment on the Labor Law § 240(1) claim against Judy Painting and the Owner Defendants. Section 240(1) requires owners, contractors, and their agents to provide specified safety devices for certain elevation-related risks. A fall from a ladder does not, by itself, establish a violation; the evidence must show that the ladder or other safety protection was inadequate and that the inadequacy caused the injury.

The ladder was stable, approximately four feet tall, in good working condition, and had locked hinges. A reasonable jury could find that additional protection—such as another person to steady or watch Kiss—was required. But a reasonable jury could also find that the working ladder and the condition of the apartment provided adequate protection. Neither Kiss nor the defendants was entitled to judgment as a matter of law on this claim.

Labor Law § 200 and Common-Law Negligence

The court denied Judy Painting’s motion for summary judgment and Kiss’s motion for summary judgment on the Labor Law § 200 claim. Section 200 codifies the duty of owners, contractors, and their agents to provide workers with a safe place to work. Liability may depend on whether the defendant had responsibility for how the work was performed and whether dangerous work conditions caused the injury.

A reasonable jury could find that Judy Painting had responsibility for how painters performed their work because it contracted to paint the units. Conversely, a jury could find that Kiss alone was responsible for how he performed the work because he received no instructions about how to complete the assignment. A jury could also find either that additional safeguards were needed or that none were required because the ladder was four feet tall and in good condition. The court likewise denied summary judgment on the common-law negligence claim.

Labor Law § 241(6)

The court granted Judy Painting’s motion for summary judgment on the Labor Law § 241(6) claim. That statute requires a plaintiff to show that the injury was proximately caused by a violation of a specific Industrial Code provision applicable to the accident. Kiss’s amended complaint and motion papers did not identify any specific code, rule, or regulation, and he submitted no evidence tying his injuries to such a violation.

Disposition

Kiss’s motion for summary judgment was denied. Judy Painting’s motion was granted in part and denied in part: it was granted as to the § 241(6) claim and denied as to the remaining claims. The § 240(1), § 200, and common-law negligence claims survived against Judy Painting. The opinion notes that Judy Painting’s request concerning the Owner Defendants’ third-party contractual indemnification claim was addressed in a separate order.