Fahey v. Worship House & Outreach Ministries, Inc.
Attorneys and Parties
Brief Summary
Construction and demolition accident litigation involving a municipal emergency demolition project and liability under Labor Law § 241(6) [imposes upon owners and general contractors, and their agents, a nondelegable duty to provide reasonable and adequate protection and safety for workers, and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor] and Labor Law § 240(1) [imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites].
The Supreme Court, Kings County, denied the plaintiff summary judgment on liability under Labor Law § 241(6) insofar as based on 12 NYCRR 23-1.5(c)(3) and 23-1.12(c)(1), and granted the City defendants summary judgment dismissing the amended complaint against them.
The Appellate Division reinstated only the Labor Law § 241(6) claim against the City defendants to the extent it was predicated on 12 NYCRR 23-1.5(c)(3) and 23-1.12(c)(1), by holding that summary judgment dismissing that portion of the claim should have been denied.
The City defendants were not entitled to governmental function immunity because the specific allegedly injurious conduct was their supervision of demolition work, which the court treated as proprietary rather than governmental. Although the City defendants made a prima facie showing that they had only general supervisory authority, the plaintiff raised a triable issue of fact through the City-Shoe Box contract, which suggested the City had the right to supervise and control the work that caused the injury.
Background
After DOB issued emergency declarations directing demolition of two dangerous adjoining buildings in Brooklyn, it notified the property owner, Worship House & Outreach Ministries, Inc., that if the owner did not remediate the conditions, the City would hire a demolition contractor at the owner's expense. When the owner failed to act, HPD, on behalf of the City, hired Shoe Box City, Inc. to perform the demolition. On May 9, 2017, plaintiff Edward J. Fahey, a Shoe Box employee, allegedly was injured when a hand-held power saw malfunctioned while he was cutting wooden planks during the demolition. He sued, asserting claims under Labor Law §§ 200, 240(1), and 241(6).
Lower Court Decision
The lower court denied the plaintiff's request for summary judgment on the Labor Law § 241(6) claim based on alleged violations of 12 NYCRR 23-1.5(c)(3) and 23-1.12(c)(1) against the City defendants, and granted the City defendants' cross-motion dismissing all claims against them, including the Labor Law § 240(1), Labor Law § 241(6), and Labor Law § 200 claims.
Appellate Division Reversal
The Appellate Division modified the order by denying the City defendants' request for summary judgment dismissing the Labor Law § 241(6) claim insofar as it was based on 12 NYCRR 23-1.5(c)(3) and 23-1.12(c)(1). The court otherwise affirmed. It agreed that the plaintiff was not entitled to summary judgment on that claim because factual issues remained as to whether the City defendants had sufficient supervision or control to qualify as an owner, contractor, or agent. It also agreed that dismissal of the Labor Law § 240(1) claim was proper because the injury was not caused by an elevation-related hazard, and it treated any challenge to dismissal of the Labor Law § 200 claim as abandoned on appeal.
Legal Significance
This decision confirms that a municipal entity involved in emergency demolition may be acting in a proprietary capacity, not a governmental one, when its alleged liability arises from supervision of construction or demolition work. As a result, governmental function immunity will not automatically bar Labor Law claims. The case also underscores that the right to control work, including contractual authority, can create a triable issue of fact on whether a public entity is an owner, contractor, or agent for Labor Law § 241(6) purposes, even where deposition testimony suggests only general oversight.
A city that arranges and oversees emergency demolition cannot obtain dismissal of a Labor Law § 241(6) claim merely by invoking governmental immunity or characterizing its role as general supervision, especially where the contract suggests a right to control the work. But a plaintiff also cannot win summary judgment without eliminating factual disputes over that control, and Labor Law § 240(1) remains limited to elevation-related risks.