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Stockpiled Materials Cemented Defendants’ Dismissal (NY)

August 3, 2018

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In <a href="http://blog.wcmlaw.com/wp-content/uploads/2018/08/Kusayev-v.-Sussex-Apts.-Assoc.-LLC.pdf">Kusayev v. Sussex Apts. Assoc., LLC</a> the Appellate Division, Second Department, ruled that a delivery truck driver who fell while using a hand truck loaded with boxes of tile and quick cement, causing the material to land on him, was not entitled to strict liability recovery under Labor Law 240(1) and 241(6) against the building owner because he was neither engaged in construction work nor working in a construction area within the meaning of the statutes.
Plaintiff alleged that he was injured while delivering construction materials to an apartment building owned by defendant Sussex Apartments after pulling the hand truck he had loaded high with tile and quick cement up a single step to the entrance of the property. Plaintiff lost his balance, falling to the ground with the items on the hand truck landing on top of him. He commenced an action pursuant to Labor Law 200, 240(1) and 241(6) against Sussex as property owner.
Sussex moved for summary judgment, which was granted by the lower court. With respect to Labor Law 240(1) and 241(6), Sussex was entitled to dismissal because plaintiff was not engaged in construction work within the meaning of 240(1) and was not working in a construction area within the meaning of 241(6) since the building materials on the hand truck were not being “readied for immediate use” but rather were being “stockpiled for future use”.
The Labor Law 200 claims were also dismissed because Sussex demonstrated that it did not create or have actual or constructive notice of the alleged condition which caused the plaintiff's injury, and that it did not supervise or control the means and methods of the plaintiff's work. As the alleged accident involved defects in both the premises and the equipment at the work site, Sussex was obligated to submit sufficient proof to satisfy both liability standards, which the Court determined it did.
The Court therefore affirmed the lower court’s dismissal of plaintiff’s complaint against the property owner. Thanks to Lauren Tarangelo for her contribution to this post. Please email <a href="mailto:VPinto@wcmlaw.com">Vito A. Pinto</a> with any questions.

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