In a decision dated January 4, 2021, the Honorable Ingrid Joseph of the Kings County Supreme Court granted our client A & F Commercial Builders, LLC’s (“A & F”) motion for summary judgment, seeking (i) dismissal of the plaintiff’s Complaint, including his Labor Law §§ 240(1), 241(6) and 200/common-law negligence claims, (ii) dismissal of the third-party claims of defendant/third-party plaintiffs Sands Brook, LLC, The Stop & Shop Supermarket Company, LLC and Ahold U.S.A., Inc. (collectively, “premises owner”) for common-law indemnification and contribution, and (iii) judgment as against DGC Capital Contracting Corp. (“DGC”), the plaintiff’s employer, on A & F’s third-party claim for contractual indemnification.  As part of remediation work following Hurricane Sandy, the plaintiff carpenter was removing drywall from a portion of a wall in a kitchen at the Shop & Shop supermarket at 1710 Avenue Y in Brooklyn, New York.  The plaintiff alleged that a piece of tile/drywall fell from above the cut line (that is, the portion of the wall that was scored for removal) and cut his forearm.  The Court held that A & F established that Labor Law § 240(1) was not applicable because the piece of tile/drywall that allegedly fell had become a permanent part of the building’s structure and, in any event, the statute was not violated because the alleged accident did not occur under circumstances in which a securing device of the kind enumerated under the statute would have been necessary or even expected.  Specifically, A & F submitted evidence that the tile and drywall were so strongly affixed to the studs that the plaintiff had to use hammers and crowbars to remove the tile/drywall from the portion of the wall he was demolishing and there was no objective evidence that the tile/drywall above the cut line was affected by his activities.  The Court held that A & F established that Labor Law § 241(6) was not violated because the cited Industrial Code regulations pertained to securing devices but A & F established there was no foreseeable need for the upper portion of the wall to be secured under these circumstances.  The Court held that A & F established its entitlement to dismissal of the plaintiff’s Labor Law § 200 and common-law negligence claims because it did not have actual or constructive notice of any alleged defective condition in the subject wall.  The Court granted dismissal of the premises owner’s claims for common-law indemnification and contribution as against A & F because A & F proved that it was not actively negligent.  The Court also granted A & F summary judgment on its contractual indemnity claim as against DGC to the extent that it is not covered by the additional insurance policy that DGC procured for A & F.

Kevin Coward v. Sands Brook, LLC, et al., Index No. 17248/2013 (Kings Co. Sup. Ct. Jan. 4, 2021)