Firm News

Court Dismisses Complaint and Third-Party Contractual Indemnification Action Against Employer In Accident Involving Electrical Worker Whose Admitted Mistake Caused Arc Fault

In a decision dated January 7, 2020, the Hon. Thomas Feinman granted our client Haugland Energy Group, LLC, a third-party defendant, summary judgment dismissing the third-party complaint against it. The Court also granted the cross-motion of defendants/third-party plaintiffs, LIPA and PSEG, for dismissal of the plaintiff’s complaint, which asserted claims pursuant to Labor Law §§241(6) and 200 and for common-law negligence. The plaintiff, an experienced journeyman lineman employed by Haugland, was working on energized overhead electrical lines when he mistakenly crossed two energized phases of wire, producing an arc fault and a “fire ball.” Although the plaintiff acknowledged that it was his erroneous action in crossing phases that caused the arc fault, the plaintiff alleged that a defective condition in PSEG’s breakers and/or relays at the substation supplying power to the electrical pole caused the prolonged “fire ball” which resulted in his injuries. Haugland submitted the affidavit of a professional engineer who established that the cited Industrial Code provisions did not apply to the facts of the case and were not violated, and that Haugland was not independently at fault so as to trigger its contractual indemnity obligations to LIPA and PSEG. The Court held that the affidavit of Haugland’s expert engineer established that the plaintiff was the sole cause of the accident inasmuch as he was well trained, had extensive experience performing this type of work, appreciated the hazards of crossing phases, was provided with the appropriate safety equipment, the work was performed in accordance with Haugland’s health and safety plan and the other members of the plaintiff’s crew were properly trained and qualified to support the plaintiff and provided adequate supervision. The Court held that Haugland’s evidence established that the Industrial Code provisions (pertaining to warnings and protection against electrical contact/shock) did not apply to this accident since the plaintiff did not sustain electrical shock. The Court declined to consider the affidavit of the plaintiff’s expert witness, a lineman foreman, on the grounds that the plaintiff failed to prove that this witness had the requisite education, training or experience with respect to the circuit breaker and relay settings at issue to render a reliable opinion. The Court also noted that the plaintiff’s expert witness failed to rebut the opinion of Haugland’s expert engineer that Haugland acted in compliance with all applicable rules, statutes and regulations. On the basis of the foregoing, the Court granted Haugland’s motion to dismiss the third-party complaint and the cross-motion of LIPA and PSEG to dismiss the plaintiff’s complaint.

William Wittenberg v. Long Island Power Authority, et al., Index No. 611711/2017 (Nassau Co., Sup. Ct., Jan. 7, 2020)


In Memoriam: Richard Schmedake (1965-2019)- The partners and staff of Fabiani, Cohen & Hall are saddened by the death of their colleague who was with the firm since 2017. He was a skilled attorney who began his career as an assistant district attorney for many years before transitioning to civil litigation where he specialized in general liability defense, including construction law and insurance coverage. He was a wonderful person and we will truly miss him. Our hearts go out to his family at this difficult time.


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., 177 A.D.3d 529, 110 N.Y.S.3d 845 (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., Sept. 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., Jun. 7, 2019)