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Firm News

First Department Affirms Supreme Court’s Decision Dismissing §240(1) Claim As to Project Manager Who Was Not Deemed to Be a Statutory Agent for Purposes of the Labor Law

In a decision dated November 21, 2019, the Appellate Division, First Department unanimously affirmed the decision of the Supreme Court, New York County (Hon. Erika M. Edwards) which granted our client, URS Corporation- New York, summary judgment dismissing all of the plaintiff’s claims as against URS and denying the plaintiff’s motion for summary judgment on his cause of action pursuant to Labor Law §240(1). The plaintiff, a Local 79 laborer employed by Dragados/Judlau, A Joint Venture was allegedly injured on November 21, 2011, while he was working in Wellway 4 of the Madison Yard on the Manhattan side of the East Side Access Project. At the time of the accident, the shackle on a chipping gun failed allowing the pressurized air hose to break free and strike the plaintiff, allegedly knocking him to the ground and causing him to roll down a 30 degree decline approximately five feet. The First Department held that the record demonstrated “conclusively that the defendant URS Corporation – New York [the only defendant involved in the appeal; the other defendants having been awarded summary judgment dismissing the action as against them], the project manager on the construction site where plaintiff was injured, did not have the authority to supervise and control the injury-producing work and was therefore not a statutory agent of the project owner or general contractor for purposes of the Labor Law (citations omitted).”

Francis Coleman v. URS Corporation, et al., — N.Y.S.3d —, 2019 WL 6193809 (1st Dep’t 2019)


Court Dismisses Complaint As to Defendant Contractor In Action Involving Plaintiff Who Tripped and Fell On Sidewalk Area Abutting Tree Pit

In a decision dated September 5, 2019, the Hon. Barbara Jaffe granted our client E.W. Howell Co., LLC summary judgment, dismissing the plaintiff’s complaint as a matter of law. The plaintiff commenced this action alleging personal injuries as a result of a trip and fall on the sidewalk in front of the Brearley School Project, located at 580 East 83rd Street, New York, New York. The plaintiff claimed that he fell when his left ankle “buckled” as he was walking on the sidewalk next to the Brearley School Project. More specifically, the plaintiff claimed that his accident occurred at the area where the sidewalk met a tree pit, causing him to fall. Based on the testimony of Howell’s witness, Howell was involved in the then-ongoing construction project at the project site, but it did not perform any work at or in the tree pit, or the sidewalk next to it on East 83rd Street, where the plaintiff stated his accident happened; nor did any subcontractor perform work at the accident location. The only obligation Howell undertook concerning the sidewalks adjacent to the school was to produce a site safety plan indicating the location of sidewalk bridges. The Court determined that Howell demonstrated neither Howell nor their subcontractors performed work on the sidewalk or created the subject condition, and that plaintiff’s pure speculation that Howell performed work in that area was insufficient to raise a triable issue of fact. In light of the foregoing, all claims against Howell were dismissed as a matter of law.

Steven Anderson v. E.W. Howell Co., LLC, Index No. 152012/2018 (N.Y. Co. Sup. Ct., September 5, 2019)


Court Denies Plaintiff’s Motion for Partial Summary Judgment on His Labor Law §240(1) Claim in Construction Accident Case Involving an Alleged Fall From a Ladder

In a decision dated July 11, 2019, the Honorable Kevin J. Kerrigan, denied plaintiff’s motion for partial summary judgment based on his Labor Law §240(1) claim against our clients, the City of New York, New York City School Construction Authority, New York City Department of Education and Leon D. DeMatteis Construction Corporation. Plaintiff, a construction worker employed by non-party Kelly Masonry Corp., allegedly sustained injuries as a result of falling from a 10-foot straight ladder leaning against a scaffold at I.S. 311 located at 98-11 44th Avenue in Queens, New York. The subject building is a public school owned by the City. The NYCSCA hired defendant DeMatteis as the general contractor and DeMatteis hired plaintiff’s employer, Kelly Masonry, to perform masonry work. The Court held that plaintiff established prima facie entitlement to summary judgment on the issue of liability with respect to his cause of action pursuant to Labor Law §240(1) by proffering evidence that he fell from an unsecured ladder which shifted and fell. However, the Court found that the defendants met their burden in opposing plaintiff’s motion by producing evidence that raised an issue of fact as to whether plaintiff fell as a result of the shifting of an unsecured ladder or whether he simply slipped from the ladder which was secured. The defendants’ submitted affidavits from Kelly Masonry’s labor foreman and supervisor averring that immediately after the accident they observed the ladder tied off to a scaffold with rope and that plaintiff told them he lost his footing and fell. This, according to the Court, raised triable issues of fact regarding plaintiff’s credibility and whether he fell as a result of an unsecured ladder that shifted and fell down or whether he fell as a result of losing his balance or slipping from a secured ladder, which would not implicate Labor Law §240(1) liability.

Leszek Drapala v. The City of New York et al., Index No. 701122/2017 (Queens Co. Sup. Ct., July 7, 2019)


Court Dismisses All Claims as to Carpentry Subcontractor in Construction Accident Case Involving Renovation Project at Macy’s Department Store in New York City

In a decision dated June 7, 2019, the Hon. Margaret A. Chan granted our client Commodore Construction Corp. summary judgment dismissing the second third-party complaint and third third-party complaint and all cross-claims as a matter of law. This action arises out of Commodore’s Master Subcontract Agreement (and several change orders) with Structure Tone, Inc. for various construction work and services related to the renovation of the first and second floors and the mezzanine level of Macy’s Department Store in New York City. Macy’s hired Structure Tone to serve as the general contractor of the project. Structure Tone hired Shorr Electrical Contracting, Inc., the plaintiff’s employer, as the electrical contractor. Commodore was the carpentry subcontractor on the project, work which included installation and maintenance of fall protection. The plaintiff, a union electrician, alleges that after inspecting Shorr’s work on the mezzanine level of the store he tripped and fell over a protruding two by four that was wrapped in orange safety netting at the top of newly-constructed permanent stairs located between the first floor and the mezzanine levels. Macy’s moved for summary dismissal of plaintiff’s complaint and summary judgment on its claim for contractual indemnity against various defendants, including Commodore. Shorr moved for summary dismissal of the various claims against it and for summary judgment on its cross-claims against various defendants and its third-party claims against Commodore. Based on the testimony of Commodore’s witness, Commodore was involved in providing protection for the stairways at the premises, but it did not provide protection for the subject stairway. Although Commodore provided perimeter protection around the whole perimeter of the mezzanine level, including orange mesh and toe boards, to prevent debris from falling to the first floor, it did not use two by fours along the mezzanine level. Part of the perimeter protection for the mezzanine level included the stairways. If there was a problem with the perimeter protection, Commodore would be notified. Here, Commodore did not receive any such complaint. The Court determined that there was no evidence of negligence on the part of Commodore and dismissed all claims for common law indemnification and contribution as against it. Macy’s third-party claim for contractual indemnity was dismissed as academic because the plaintiff’s complaint was dismissed in its entirety as to Macy’s. Shorr’s claim for contractual indemnity was dismissed as to Commodore because the Court determined that the plaintiff’s accident did not arise from Commodore’s work under the subcontract. The claims against Commodore for breach of contract for the failure to procure insurance brought by Macy’s and Shorr were dismissed because they failed to oppose that branch of Commodore’s motion which sought dismissal of these very claims.

Lee Rudnitsky v. Macys Real Estate, LLC et al., Index No. 157417/2012 (N.Y. Co. Sup. Ct., June 7, 2019)


First Department Modifies Lower Court’s Consolidation Order and Refuses to Permit Joint Trial of Damages Claims of Three Personal Injury Actions Arising from the Same Gas Explosion Accident

In a decision dated May 16, 2019, the Appellate Division, First Department unanimously modified the Order of the Supreme Court, Bronx County (Hon. Laura G. Douglas) to the extent that it granted the plaintiffs’ motion to consolidate three personal-injury actions for a unified, joint trial on liability and damages. Our clients, the City of New York, New York City School Construction Authority, New York City Department of Administrative Services, Positive Electrical Associates, Inc. and the Board/Department of Education of the City of New York, consented to consolidation of the three actions for joint discovery and a joint trial of the three actions on the issue of liability but did not consent to a single, joint trial of all three actions on liability and damages. The actions relate to a gas explosion that occurred on August 20, 2015, during the construction of science laboratories at John F. Kennedy High School in the Bronx. The plaintiffs, who were employed by a plumbing and heating contractor, sustained personal injuries when there was a gas explosion while they were purging a gas line in a classroom laboratory. The plaintiffs assert causes of action for violations of Labor Law §§200 and 241(6) and for common-law negligence. The First Department held that, even though the three plaintiffs sustained similar types of injuries (i.e., burns), they each sustained different degrees of burns to different parts of the body. Therefore, a joint trial of the damage claims was not warranted because “individual issues would predominate” concerning the particular circumstances applicable to each plaintiff, including their individualized medical treatment and distinct medical history. The Court concluded that “[a]ny benefit gained by trying plaintiffs’ damages claims together would be outweighed by the potential prejudice to defendants.”

Charles Marullo v. The City of New York, et al., —N.Y.S.3d— (1st Dep’t 2019)


Fabiani Cohen & Hall Obtains Discontinuance of Plaintiff’s Complaint With Prejudice and With No Money Paid on Eve of Trial in Construction Accident Case After Presenting Plaintiff’s Counsel With Substantial “Conflicting” Proof About the Circumstances of the Accident

This matter arises out of CCA Civil/Halmar International, LLC’s contract with the State of New York Department of Transportation to reconstruct the Alexander Hamilton Bridge. The plaintiff, a Local 40 journeyman ironworker employed by CCA/Halmar, claimed he was injured on May 30, 2013, at the mid-span section of the bridge, when he stepped on a piece of chopped concrete debris on the Q-decking causing him to twist his right knee and sustain career-ending injuries including multiple surgeries ending in a total knee replacement. Plaintiff brought suit against the State of New York in the Court of Claims alleging violations of Labor Law §§200 and 241(6) as well as common law negligence. The case was scheduled for trial on April 30, 2019, before Judge David Sampson. Plaintiff’s settlement demand was $6 million.

Several days prior to trial, FCH presented plaintiff’s counsel with substantial ‘”conflicting” evidence of the circumstances of the alleged accident including that the plaintiff injured his knee while kneeling on a wood float for a week (C-2 Incident Report prepared after drafter spoke with plaintiff and C-3 Incident Report read and signed by plaintiff under oath) or while crawling from the shield to the wood float (doctor’s report) or while carrying a heavy hatch door (another doctor’s report) or because he tripped and fell over debris located on the Q deck covered with rubble, concrete chunks, debris and uneven Q deck pieces (plaintiff’s own sworn affidavit used in support of a motion for leave to file a late notice of intention to file a claim) or because he stepped on a small piece of concrete on an otherwise clean Q deck and twisted his knee but did not slip or trip and fall (plaintiff’s own sworn deposition testimony).

After presenting all of the “conflicting” evidence to plaintiff’s counsel, they agreed to discontinue the action in its entirety with prejudice. On April 29, 2019, a fully executed stipulation of discontinuance with prejudice was filed with the Court of Claims thereby bringing the action to conclusion without any money having been paid.

James Barry v. The State of New York, Index No. 124139 (N.Y. Ct. Claims)


First Department Affirms Dismissal of Plaintiff’s Complaint As Against City Defendants in Construction Accident Case

In a decision dated May 7, 2019, the Appellate Division, First Department unanimously affirmed the decision of the Supreme Court, New York County (Hon. Gerald Lebovits) which granted our clients, the City of New York and the New York City Department of Environmental Protection, summary judgment dismissing all of the plaintiff’s claims as against the City and the DEP and denying the plaintiff’s motion for summary judgment on his causes of action pursuant to Labor Law §§240(1) and 241(6). The plaintiff, a Local 638 steamfitter employed by Skanska Mechanical and Structural, Inc. was allegedly struck by an inadequately secured roller hanger pipe saddle in the neck, which fell from above. The incident allegedly occurred on October 2, 2011, while the plaintiff was working at the North River Sewage Treatment Plant located in Manhattan. The First Department held that Labor Law §240(1) did not apply to the circumstances of this accident “because the pipe saddle that detached from an overhead ceiling pipe assembly and struck plaintiff was not an object that required securing for the purposes of the undertaking; rather it was a permanent part of the structure.” Regarding the plaintiff’s Labor Law §241(6) claim, the First Department held that neither of the pleaded violations of the Industrial Code applied. Rule 23-1.7(a)(1) was held to be inapplicable “because plaintiff was not injured by debris that may have been falling from a ceiling demolition, but instead, from a fixture of the building which dislodged.” Rule 23-3.2(b) was also held to be “inapplicable because it pertains to protecting the stability of adjacent structures, not the stability of the building or structure allegedly being demolished.” Regarding the plaintiff’s causes of action for common law negligence and violation of Labor Law §200, the First Department held that these claims were properly dismissed because “[d]efendants made a prima facie showing of lack of notice of any problem with pipe saddles through the testimony of the construction manager’s representative who regularly walked the site and saw no evidence of the alleged condition, and the evidence that there were no complaints or prior similar incidents at the property.” The Court also determined that there was no constructive notice to the defendants “because the defective pipe saddle was latent, such that the construction manager’s representative’s inspections would not have alerted it to the potential hazard of the object becoming dislodged and falling.”

Michael Djuric v. City of New York et al., — N.Y.S.3d —- (1st Dep’t 2019)