Firm News

First Department Unanimously Affirms Decision Denying Plaintiff Construction Worker Summary Judgment on Labor Law §240(1) Claim Where Medical Records and Workers’ Compensation Documents Revealed a Conflicting Account of the Accident

In a decision dated June 9, 2026, the Appellate Division, First Department unanimously affirmed the lower court’s decision to deny plaintiff’s motion for summary judgment on his claim pursuant to Labor Law §240(1) against our clients, J.T. Magen & Company Inc., Nordstrom, Inc., Broadway 57th/58th Retail Investor, LLC, 1790 Broadway Associates LLC and ULM I Holding Corp. The plaintiff claimed he was struck by a 350-pound duct that fell while being transported on wooden dollies, stacked over eight feet high and unsecured. Although the Court acknowledged that plaintiff established a prima facie entitlement to summary judgment pursuant to Labor Law §240(1) under his version of events, it held that the medical records and workers’ compensation documents submitted by the defense raised a question of fact by reflecting that plaintiff may have been injured while lifting or carrying the ductwork, rather than being struck by a falling object. The Court specifically found that Dr. Morrison’s records were admissible as business records and constituted admissions attributable to plaintiff, rejecting plaintiff’s attempt to avoid those statements based upon an alleged language barrier. With conflicting accounts of how the accident occurred, the court found a genuine issue of fact existed and denied plaintiff’s motion for summary judgment.

Carlos Villanueva v. J.T. Magen & Company Inc. et al, 2026 WL 1655913, — N.Y.3d— (1st Dep’t June 9, 2026)

Land Surveyor Evidence and Affidavits Secure Dismissal of All Claims Against Improperly Named Defendants in Sidewalk Trip and Fall Case

In a decision dated May 27, 2026, Hon. Kevin J. Kerrigan of Queens County Supreme Court granted our clients, Queens Plaza Park Development LLC, Queens Plaza Park Development II LLC, QPP LLC and QPP Lot 4 LLC’s motion for summary judgment dismissing the plaintiff’s complaint as a matter of law. The plaintiff alleged that she tripped and fell on a sidewalk abutting 29-14 40th Road in Queens, New York (a vacant lot within a large block with many other lots and easements), due to a cracked and uneven sidewalk. It is alleged that our clients, along with co-defendants, the City of New York and the Metropolitan Transportation Authority, owned the adjacent lot, and were negligent in failing to maintain/repair the sidewalk. Although our clients did not own the subject lot, neither the plaintiff nor the co-defendants would discontinue their claims and cross-claims until either the City or the MTA admitted ownership of the specific lot. We retained a land surveyor who averred that the subject lot is owned by the City. This information, along with the affidavits of our multiple clients, was submitted as evidence to the Court in our motion for summary judgment. The plaintiff argued that our pre-deposition motion was premature and the affidavits submitted were self-serving. In granting our motion, the Court disagreed, finding our supporting affidavits “perfectly admissible.”

Kim-Marie Cespedes v. City of New York, et al., Index No. 702779/2024 (Sup. Ct., Queens Co., May 28, 2027)

Court Grants Defendants Summary Judgment Dismissing Labor Law §§200 and 240(1) Claims and Most Industrial Code Rules Supporting Plaintiff’s Labor Law §241(6) Claim and Denies Plaintiff Summary Judgment on his Labor Law §§240(1) and § 241(6) Claims in Case Where Plaintiff Allegedly Fell While Performing Clean and Inspection Services on Water Main Beneath Roadway

In a decision date June 3, 2026, the Honor. Alison J. Napolitano, J.S.C. of Suffolk County Supreme Court denied the plaintiff’s motion for partial summary judgment on his Labor Law §240(1) and § 241(6) claims against our client, DiFazio Industries, LLC, and dismissed plaintiff’s claims under Labor Law §§200 and 240(1) and most of the Industrial Code Rules supporting his claim pursuant to Labor Law §241(6).  The plaintiff a non-union laborer, employed by non-party, Earth Repair LLC, alleges to have fallen on July 29, 2020, while working on a construction project near the intersection of Winchester Boulevard and Braddock Avenue, Queens, New York.  The plaintiff was allegedly standing on an underground water main pipe inside a manhole, while he lifted and moved the pipe’s cover. As he moved the cover, the plaintiff claims he slipped and fell to one knee, while his right leg plunged down into the water main pipe’s opening, and he simultaneously caught himself midfall with his hands pressed against the manhole walls. Through the use of expert testimony and an application of the facts of the case to the relevant law, DiFazio was able to defeat the plaintiff’s motion for summary judgment and to dismiss most of the claims against it.  This was despite the fact that the plaintiff used their own purported expert in an attempt to bolster his claims. The Court dismissed the Labor Law §200 claims because DiFazio demonstrated that it did not have authority to supervise or control the performance of plaintiff s work, and that it neither created nor had notice of the alleged dangerous or defective condition. The Court also dismissed the plaintiff’s Labor Law §240(1) claim stating DiFazio established its prima facie showing of entitlement by demonstrating that even, when viewed in a light most favorable to plaintiff, the weight of the water main’s cover was insufficient to constitute the type of falling object contemplated under the statute and the water main’s exposed opening only presented “’the type of ‘ordinary and usual’ peril a worker is commonly exposed to at a construction site”. Regarding the Labor Law §241(6) claim, the Court dismissed most of the Industrial Code Rules which supported this claim, holding that DiFazio demonstrated that the provisions were either insufficiently specific or inapplicable to the facts of the case.

Michael Piccolo v. Difazio Industries, LLC., Index # 608381/2023  (Sup. Ct. Suffolk Co., June 3, 2026)

On June 3, Thomas J. Hall lectured at a Symposium for Travelers Construction Claims entitled “Evaluating and Defending Loss of Earnings Claims by Union Construction Workers” in New York, New York.

Frank Thompson and Nicholas Vevante Convince the New Jersey Supreme Court to Uphold the Dismissal of the Complaint as to a Developer Involved With the Goethals Bridge Replacement Project

In an Order dated May 5, 2026, the New Jersey Supreme Court rescinded the granting of certification to the plaintiff for an appeal from the New Jersey Appellate Division effectively upholding the dismissal of the plaintiff’s claims as decided by the Appellate Division.  Our client, NY-NJ Link Developer, LLC, entered into an agreement with The Port Authority of New York and New Jersey to replace the Goethals Bridge.  NY-NJ Link hired Kiewit-Weeks-Massman for the design and construction of the replacement of the Goethals Bridge.  KWM was the plaintiff’s employer at the time of the accident. The plaintiff was working on the New Jersey side of the Goethals Bridge when the accident occurred.  The plaintiff alleges that he was injured when a co-worker improperly operated an excavator while moving a wooden crane mat, causing the mat to strike the plaintiff in the back.  The plaintiff originally brought claims under both New York and New Jersey law which were dismissed by the motion court and upheld by the Appellate Division.  The plaintiff then filed a Petition for Certification to the New Jersey Supreme Court.  The Supreme Court originally granted the plaintiff’s Petition for Certification, limited to issues of general contractor liability for injuries to a subcontractor’s employees under New Jersey Law.  Essentially, the Supreme Court wanted briefs about whether NY-NJ Link could be held liable for the alleged negligence of its independent subcontractor KWM.  After supplemental briefs submitted to the Supreme Court by our office and oral arguments in front of the Court, the Supreme Court decided to vacate the order stating that it was improvidently granted.  In vacating the order granting certification, the Supreme Court upheld the dismissal of all claims holding that our client, NY-NJ Link, could not be held liable for the plaintiff’s accident.

Erwin Campoverde v. NY-NJ Link Developer, LLC et al., Index No. A-001174-23 (N.J. Sup. Ct., May 5, 2026)

Supreme Court Grants Defendants’ Pre-Answer Motion to Dismiss Complaint in Commercial Lawsuit

In a decision dated May 8, 2026, the Hon. Ralph J. Porzio of Richmond County Supreme Court granted our clients’ pre-answer motion to dismiss the plaintiff’s complaint as a matter of law. In this commercial matter, the plaintiff claimed that he was entitled to payment of nearly $300,000 in unpaid invoices for work spanning from 2020 to 2023. Rather than engaging in discovery, our firm took an aggressive approach and filed a pre-answer motion to dismiss the lawsuit in its entirety based on the argument that the contract on which the alleged claim was based was not reduced to writing and was, therefore, unenforceable under the statute of frauds. We also argued that the plaintiff could not rely on a claim for quantum meruit to circumvent the statute of frauds. The plaintiff also improperly included numerous individual defendants, including one defendant who was deceased when the lawsuit was commenced, and another who was merely an employee of the corporate defendant and undertook no separate obligation to pay the invoices. Ultimately, the Judge agreed with all of our arguments and dismissed the plaintiff’s complaint, with prejudice, as to all defendants.

Rocco’s Landscaping and Concrete Service LLC v. Baron Hirsch Cemtery Association Inc., et al., Index No. 150663/2026 (Sup. Ct. Richmond Co., May 8, 2026)

Congratulations to Craig Mauro who obtained a favorable settlement for our client following a trial on liability in Kings County Supreme Court.

Our firm recently achieved a favorable settlement in a Kings County Supreme Court construction accident lawsuit involving a claim pursuant to Labor Law §200 and for common-law negligence. Plaintiff alleged serious career-ending injuries. After several days of trial preparation, jury selection, motion practice and testimony, the case resolved for a total of $500,000, of which our client is responsible for $250,000. The settlement is a substantial reduction from plaintiff’s prior demand of $4.5 million.

The defense strategy focused on narrowing the issues for trial, challenging plaintiff’s liability theory, developing key testimony concerning the condition at issue and preserving contractual indemnity and apportionment arguments against the responsible subcontractor. As trial progressed, plaintiff’s demand was reduced significantly, and the case ultimately settled for an amount inclusive of all liens, including workers’ compensation and litigation funding liens.

Kastriot Ndoci et al. v. Trinity Northeast Brooklyn Limited Partnership et al., Index No. 502048/2021(Sup. Ct. Kings Co.)

Supreme Court Grants Summary Judgment On Reargument to Owner, Tenant and Contractor Defendants On Their Third-Party Claims For Contractual Indemnity Against Plaintiff’s Employer

In a decision dated April 16, 2026, the Hon. Ashlee Crawford of Bronx County Supreme Court granted our clients’ motion to reargue and, upon reargument, granted our motion for summary judgment seeking contractual indemnity from the plaintiff’s employer, MC Electrical Construction, Inc. The plaintiff alleges that he was injured on February 27, 2018, when he fell from a ladder that moved while he was running electrical cables in the ceiling while working for the third-party defendant, MC Electrical. We represent the building owner, 96 Springs, LLC, the tenant that contracted for the work Alo, LLC/Color Image Apparel Inc., and the general contractor, Shawmut Woodworking & Supply, Inc. At the conclusion of discovery, we filed a motion for summary judgment seeking dismissal of the plaintiff’s Labor Law §200 and common law negligence claims, for contractual indemnity from the plaintiff’s employer and for dismissal of the third-party defendants’ counterclaims. Upon receipt of our motion papers, the plaintiff withdrew his common law negligence and Labor Law §200 claims. In her original decision, Judge Crawford granted that portion of our motion which sought dismissal of MC Electrical’s counter claims, but denied our motion for contractual indemnity finding that the indemnity provision in the contract required a determination that the accident was caused by MC Electrical Construction, Inc.’s negligence, which had not been established. We moved to reargue the portion of the Order that denied our motion for contractual indemnity arguing that the Court misapprehended the contract by requiring a showing of negligence, when the indemnity provision only required us to show that the accident arose out of MC Electrical’s work and that it was caused, in whole or in part, by the acts or omissions of MC Electrical and its employees, including the plaintiff. The Judge agreed with our reading of the contract and granted reargument and, upon reargument, granted our clients summary judgment on their contractual indemnity claim against MC Electrical conditioned only on a finding of liability in favor of the plaintiff..  

Tito Alexander Rojas v. 96 Springs, LLC et al., Index No. 25484/2018E (Sup. Ct. Bronx Co., Apr. 16, 2026)

Court Dismisses Complaint as to Property Owner in Lawsuit Involving a Trip and Fall on Adjacent Sidewalk

In a decision dated March 31, 2026, Hon. Chereé A. Buggs of Queens County Supreme Court granted our client Junction Sports Plus Inc.’s motion for summary judgment dismissing the plaintiff’s complaint as a matter of law. The plaintiff alleged that she tripped and fell on a brick sidewalk on Junction Boulevard in Queens, New York, due to a raised brick. It is alleged that our client, the tenant of the adjacent building, was negligent in failing to maintain/repair the sidewalk. At multiple depositions, the plaintiff testified differently regarding the location of the condition on which she tripped.  In an earlier appeal, the Appellate Division, Second Department, held that the plaintiff could not identify the cause of her fall without engaging in speculation. Our motion for summary judgment was based on that holding being the law of the case. In opposition, nine years after the accident, the plaintiff introduced for the first time an affidavit of her brother who came to the scene after her fall. In the affidavit, the plaintiff’s brother identified the specific height and location of the raised brick on which the plaintiff allegedly tripped. In granting Junction’s motion for summary judgment, the Court found the plaintiff’s attempt to introduce the affidavit was improper at this stage, and after nine motions for summary judgment, the plaintiff had no reasonable explanation as to why the affidavit wasn’t submitted earlier.

Zorayda Hernandez v. 38-09 Junction Realty LLC et al., Index No. 714742/2017 (Sup. Ct. N.Y. Co., Mar. 31, 2026)

On March 10, Thomas J. Hall, Bryan F. Tiggs and Nicole G. Vevante lectured at a Symposium for Travelers Construction Claims entitled “Strategies for the Effective Management of High Exposure Personal Injury Litigation” in New York, New York.