Firm News

Court Denies Plaintiffs’ Motion for Protective Order and to Quash Subpoena Holding That IME WatchDog Records Are Not Privileged and Must Be Produced to Defendants

In a decision dated January 4, 2019, the Hon. Lucy Billings denied the plaintiffs’ motion for a protective order and to quash the defendants’ (our clients’) subpoena duces tecum served upon IME WatchDog, Inc. for all records pertaining to the injured plaintiff’s examinations by the defendants’ physicians. The plaintiff, a local 28 union tin knocker/sheet metal worker employed by Tishman Construction Corporation of New York subcontractor Heritage Mechanical Services, alleges that  he sustained personal injuries while engaged in ductwork and HVAC unit installations at a construction project. In the plaintiffs’ motion to quash, they argued that IME Watchdog’s records were protected from discovery by the attorney work product privilege (CPLR  § 3101(c)) and as materials prepared for litigation (CPLR § 3101(d)(2)).  In opposition, the defendants argued that the attorney work product privilege does not attach because IME WatchDog employs non-attorney representatives whose services are not necessary to facilitate attorney-client communications.  The defendants also argued that these records are not immune from disclosure as material prepared in anticipation of litigation because the plaintiffs anticipated calling IME WatchDog representatives as trial witnesses and, as such, these records are relevant and subject to disclosure, pursuant to CPLR § 3101(d)(4).  The defendants also argued that the plaintiffs failed to establish any special and unusual circumstances for transcribing the examinations, which would have required prior court approval, and that any such recordings are subject to disclosure, pursuant to CPLR § 3101(i).  The Court held that, because the IME WatchDog representative who appeared at the examinations was not serving as the plaintiffs’ attorney, the records were not protected by the attorney work product privilege.  The Court also held that even though the records constituted materials prepared for litigation, they were subject to disclosure because the defendants established that the recorded observations of the IME WatchDog representatives could not be obtained from any other source.  Therefore, the Court held that non-party IME WatchDog was compelled to provide its records because they are relevant to the defense of the action.

Kevin Sheehan v. 30 Park Place Residential LLC, et al., Index No. 157153/2015 (N.Y. Co. Sup. Ct., Jan. 4, 2019)

In Construction Accident Cases Involving Two Injured Plaintiffs, Court Awards Defendants Summary Judgment on Contractual Indemnity Claims, Dismisses Plaintiffs’ Labor Law §200 and Common Law Negligence Claims, Dismisses All Counterclaims and Denies Plaintiffs’ Motions for Summary Judgment on their Labor Law §240(1) Claims

In two decisions dated October 25, 2018, involving two related cases arising from the same construction accident, the Hon. David T. Reilly granted our clients, Whole Foods Market Group, Inc. and Construction Management & Builders, Inc., summary judgment dismissing the plaintiffs’ Labor Law §200 and common law negligence claims as well as all counterclaims against them. The Court awarded our clients summary judgment on their contractual indemnity claims against the third-party defendant. Additionally, the Court denied the plaintiffs’ cross-motions for summary judgment on their Labor Law §240(1) claims. At the time of the accident, the plaintiffs were performing sheet-metal deck installation work as employees of the third-party defendant, Piermount Iron Works, Inc., who instructed and directed the plaintiffs’ work and provided them with the tools and equipment to perform the sheet-metal decking work. Piermount erected a safety cable on the second floor of the structure where the decking was being installed and provided the plaintiffs with safety harnesses to attach to the safety line. Plaintiffs were going to use a torch to cut a notch into a piece of decking to install it into place. As the piece of decking was about to be cut, the decking collapsed.

The two related cases were consolidated and separate summary judgment motions were made in each case. We moved to dismiss the plaintiffs’ Labor Law §200 and common law negligence claims against the defendants because the accident arose out of the means and methods by which the plaintiffs were performing their work for their employer, Piermount. The Court agreed and dismissed the §200 and common law negligence claims against our clients in each case. Moreover, the Court dismissed all counterclaims against our clients because it determined they were not negligent as a matter of law, did not breach any contractual agreement to procure insurance and were not contractually obligated to indemnify any party. Our clients also moved for summary judgment on their contractual indemnity claims against Piermount based on the contract which provided for indemnification for bodily injury to Piermount employees “arising out of, resulting from, connected to or relating to the performance or non-performance of the Work.” In both cases, the Court granted summary judgment on our clients’ contractual indemnity claims against Piermount on the grounds that the plaintiffs’ injuries arose out of or were related to the performance of their work for Piermount. Furthermore, both plaintiffs served improper cross-motions seeking summary judgment on their Labor Law §240(1) claims on the grounds that they were not provided with adequate safety devices to perform their work at an elevation. However, because the plaintiffs filed their respective motions after the 120-day post-note of issue deadline, we argued that the plaintiffs’ motions only pertaining to Labor Law §240(1), which was not even addressed in our clients’ timely summary judgment motions, were untimely without any justification or excuse and should not be considered. The Court agreed and denied the plaintiffs’ untimely motions seeking summary judgment on their §240(1) claims. Accordingly, our clients’ motions were granted in their entirety and the plaintiffs’ cross-motions were denied in their entirety.

Roger Schwarting v. Whole Foods et al., Index No. 003756/14 (Suffolk Co. Sup. Ct., Oct. 25, 2018);

Donald Swital v. Whole Foods et al., Index No. 003757/14 (Suffolk Co. Sup. Ct., Oct. 25, 2018)

Court Denies Plaintiff Summary Judgment on Labor Law §240(1) Claim Based on His Account of Accident in Physician’s Affidavit and Medical Records

In a decision dated July 20, 2018, the Hon. Lucindo Suarez denied plaintiff’s motion for partial summary judgment on his Labor Law §240(1)claim against our clients, LV Queens Group LLC and Artec Construction and Development Corp. The plaintiff, a Green Grounds Inc. laborer, working on the Borough Place Project in Woodside, New York, claims he fell 18 to 20 feet to the ground from a ladder that was placed on top of a scaffold. The fall was witnessed by his co-worker.  In opposition to the plaintiff’s motion, the defendants submitted an affidavit from a physician’s assistant at Weill Cornell Medical Center along with medical records containing the plaintiff’s admission as recorded by the physician’s assistant. Plaintiff’s medical records from Elmhurst Hospital were also submitted.  Based on the affidavit and medical records, the plaintiff reportedly stated the following: that he twisted his foot and fell, that he unknowingly stepped into a ditch and that he tripped on a pothole while walking in the street. In light of these statements, the defendants argued that there was a triable question of fact regarding the plaintiff’s account of the accident. The Court agreed and denied plaintiff’s motion.

Luis Fernandez v. LV Queens Group LLC et al., Index No. 302651/12 (Bronx Co. Sup. Ct., July 20, 2018)

Court Dismisses Plaintiff’s Complaint Against Contractor in Construction Accident Case

In a decision dated July 9, 2018, the Hon. R. Bruce Cozzens, Jr. granted our client, Skanska USA Building Inc., summary judgment dismissing the plaintiff’s complaint in its entirety as a matter of law. The plaintiff commenced this action alleging personal injuries as the result of a trip and fall on a construction project. It is alleged that the defendant was negligent for allowing debris to be on the job site and for failing to properly illuminate the job site.  Additionally, the plaintiff alleged violations of Labor Law §§200, 240 and 241(6).  In support of its summary judgment motion, Skanska asserted that the plaintiff’s conduct was the sole proximate and superseding cause of his accident. It argued that, contrary to plaintiff’s claims, he was not walking through a passageway, but rather, chose to walk through a planter located under a stairway instead of walking around it. Further, the plaintiff did not oppose Skanska’s motion to the extent of dismissing the causes of action for common law negligence and violations of Labor Law §§240 and 241(6), with the exception of the alleged violations of Industrial Code Rules 23-1.7(e)(1) and (2) and 23-2.1(a)(1), claiming that the planter was actually a passageway. In reaching its decision to dismiss the complaint, the Court determined that the plaintiff’s choice to walk through a planter, rather than walk around it, was the sole and superseding proximate cause of his injuries.

Carl Fumia v. Skanska USA Building Inc., Index No. 606950/14 (Nassau Co. Sup. Ct., July 9, 2018)