Appellate Division Bars Plaintiff from Amending Complaint to Assert Claim for Punitive Damages Against Contractor
In a decision dated December 14, 2017, the Appellate Division, First Department unanimously reversed a Supreme Court, Bronx County order that granted the plaintiff’s motion to amend his complaint to include punitive damages against our client, Grace Industries, LLC. The plaintiff was involved in a motor vehicle accident on a highway that was in the process of being resurfaced by our client. After some discovery, the lower court allowed the plaintiff to amend his complaint to include a claim for punitive damages as against Grace. The basis for the plaintiff’s claim for punitive damages, among other things, was Grace’s off-road storage of a paver and its failure to fill in a trench on the side of the road. In reversing the lower court’s decision, the First Department determined that the conduct put forth by the plaintiff, if proven, was insufficient for the imposition of punitive damages, because it could not be viewed as a conscious and deliberate disregard of the rights of others. Accordingly, leave to amend the plaintiff’s complaint was denied.
Britz v. Grace Industries, LLC, et al., 156 A.D.3d 533, 65 N.Y.S.3d 453 (1st Dep’t 2017)
Court of Appeals Reverses Lower Court Decisions and Finds Issues of Fact Regarding Plaintiff’s Labor Law §240(1) Claim
In a decision dated September 5, 2017, the Court of Appeals reversed the Appellate Division, First Department’s decision and order which had affirmed the lower court’s decision granting plaintiff summary judgment on his cause of action pursuant to Labor Law §240(1). The plaintiff, an employee of non-party, Pinnacle Contracting, claimed that he was injured when he slipped on grease while walking down an inclined plank at the construction site where he was working. In the Supreme Court, Justice Alice Schlesinger granted plaintiff’s motion for summary judgment on his Labor Law §240(1) claim. This decision was affirmed by the First Department. In reversing the lower courts’ decisions, the Court of Appeals determined that there were issues of fact as to the Labor Law §240(1) claim because the plaintiff’s foreman arguably provided conflicting accounts of whether the plaintiff had adequate safety devices available and whether he knew both that they were available and he was expected to use them, whether he chose for no good reason not to do so and whether his accident would have been prevented had he not made that choice.
Valente v. Lend Lease (U.S.) Construction LMB, Inc. et al. 29 N.Y.2d 1104, 82 N.E.3d 448, 60 N.Y.S.3d 107 (2017).
On November 8, Stephen M. Cohen and Thomas J. Hall lectured at a seminar for Hiscox entitled “Overview of New York Labor Law §§200, 240(1) and 241(6),” in London, England.
On November 6, John V. Fabiani and Marc M. Mahoney lectured at a seminar for Lend Lease entitled “Recent (Positive) Developments in Labor Law §240(1) Actions,” in Indianapolis, Indiana
In a decision dated October 18, 2017, Justice Kevin J. Kerrigan granted our clients, the City of New York and E.C.C.O. III Enterprises, Inc., summary judgment dismissing the plaintiff’s complaint against them together with all cross-claims. The plaintiff, a driver of a motor vehicle on the northbound Van Wyck Expressway, alleged that on May 6, 2014, she was injured when her vehicle was struck from behind by a truck owned and operated by the co-defendants, after which the plaintiff’s vehicle came into contact with a concrete barrier. The City moved to dismiss the claims against the it because the City did not own the Van Wyck Expressway where the plaintiff’s accident occurred, the City did not perform or hire anyone to perform any construction work at the location and the City was not legally responsible for maintaining the Van Wyck Expressway. The Court agreed and held that the road is a New York State arterial highway upon which the City did not direct or control any work. The Court also held that the City was not responsible for the roadway pursuant to the Highway Law, warranting dismissal of all claims against it. E.C.C.O. moved to dismiss all claims against it because the plaintiff was not a party to E.C.C.O.’s contract with the New York State Department of Transportation, and therefore, E.C.C.O. did not owe a duty to the plaintiff. E.C.C.O. further argued that the concrete barrier was properly positioned, the lane markings were properly delineated, the travel lanes were sufficiently wide and E.C.C.O. reasonably and properly relied upon the plans provided by the NYSDOT. In dismissing all claims against E.C.C.O., the Court held that E.C.C.O. provided ample evidence that it did not create or exacerbate a dangerous condition, was not responsible for the design plans of the NYSDOT and was not responsible for implementing any traffic control at the location. Accordingly, the Court granted the City and E.C.C.O. summary judgment and dismissed all claims against these defendants as a matter of law.
Clark v. City of New York et al., Index No. 16149/14 (Queens Co. Sup. Ct., Oct. 18, 2017)
On October 26, Stephen M. Cohen and Thomas J. Hall lectured at a seminar for Travelers Insurance Company entitled “Defending Construction Zone Accidents,” in New York, New York.
In a decision dated October 4, 2017, Justice Paul J. Baisley, Jr. granted our client, Manhattan Business Interiors, summary judgment dismissing the plaintiff’s complaint against it together with all cross-claims. The plaintiff, a Superintendent of Buildings and Grounds at CUNY Queens College, alleged that on October 31, 2011, he fell partially into a two-foot wide “scenery trench” located at the back of the stage of the Goldstein Theatre while attempting to dodge a pile of wood debris. At the time of the accident, the plaintiff claims that he was taking part in a walk-through of the theatre which was in the process of being renovated. The City University Construction Fund hired LiRo Program and Construction Management, P.C. to act as the construction manager in connection with the renovation of the Kupferberg Center for the Arts Complex at Queens College. LiRo in turn contracted with MBI to perform general contracting work at the project including renovations to the Goldstein Theatre. MBI hired more than one dozen subcontractors for the project. In dismissing plaintiff’s Labor Law §240(1) claim, the Court held that the plaintiff did not sustain injuries resulting from an elevation-related hazard. The Court also found that the plaintiff was not entitled to the protections of Labor Law §241(6) as he was neither employed by a contractor retained to perform a covered activity nor was he permitted or suffered to carry out such an activity in relation to the subject renovation project. Further, the activity he was engaged in at the time of the accident, namely his inspection of a water leak, was consistent with the type of routine maintenance he would be expected to carry out as a janitorial superintendent. Plaintiff’s Labor Law §200 and common law negligence causes of action were also dismissed because MBI neither created the hazardous condition nor had actual or constructive notice of it.
Mandart v. MBI Construction, Inc. et al., Index No. 26654/12 (Suffolk Co. Sup. Ct., Oct. 4, 2017)
In a decision dated September 15, 2017, Justice Thomas P. Aliotta granted our client, defendant CCA Civil Inc., summary judgment dismissing the plaintiff’s complaint against it as a matter of law. The plaintiff claimed that he sustained injuries on November 6, 2012, when he fell off his bicycle while riding on the sidewalk. The left handlebar of his bicycle allegedly struck an orange road sign that had become detached from a wooden frame and was situated on the ground and protruding three to four inches onto the sidewalk. At the time of the accident, a construction project was underway which involved the reconstruction of the Staten Island Expressway along the stretch of Narrows Road where plaintiff’s accident occurred. CCA had a contract with the State of New York Department of Transportation for the Staten Island Expressway project. The Court held that CCA established its prima facie entitlement to summary judgment as a matter of law by setting forth evidence that the plaintiff was not a party to its contract with the NYSDOT for the reconstruction of the Staten Island Expressway, and therefore owed plaintiff no duty of care. The Court held that assuming arguendo that the pleadings alleged facts which would establish the applicability of various exceptions to the no-duty rule espoused by the leading Court of Appeals decision in Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002), the plaintiff’s motion papers failed to raise any triable issue of fact that would support an exception to Espinal. The Court found the relevant contract terms, diagrams and drawings clearly depicted that the area in question was not within the boundaries of the work performed by CCA. The Court also found there was no evidence CCA had actual or constructive notice of the alleged defect for a sufficient length of time prior to the accident. The Court further held that plaintiff’s conclusory assertion that CCA had constructive notice of the defective sign was legally insufficient, noting that the plaintiff admitted at his 50-h hearing that he himself did not see the subject sign before his accident. Finally, the Court held that based on plaintiff’s photographs, which he testified fairly and accurately represented the accident site, the orange road sign at issue was readily observable by a reasonable use of the plaintiff’s senses and the condition of the roadway was not inherently dangerous.
Cortes v. City of New York, et al., Index. No 100118/2014 (Richmond Co. Sup. Ct., Sept.15, 2017)