In a decision dated April 28, 2017, Justice Manuel J. Mendez granted our clients, defendants Bank of America Corp. and Structure Tone, Inc., summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violations of Labor Law §§200 and 241(6). The plaintiff, an employee of non-party Almar Plumbing and Heating Corporation, claimed that he sustained injuries on September 2, 2008, while working at the construction site located at 1111 Avenue of the Americas, New York, New York. The project at the premises, known as “One Bryant Park”, entailed the new construction of a commercial building with interior corporate offices, amenities and retail space. Plaintiff claimed he was injured when his foot slipped on an unsecured piece of masonite while exiting an elevator at the C-2 level of the building. The masonite that had allegedly caused plaintiff to fall had been placed over a poured concrete floor which had been covered by vinyl laminate flooring to protect it during the remainder of the construction process. By way of background, the plaintiff had previously commenced a lawsuit arising out of the same accident against our clients, defendants One Bryant Park, LLC, One Bryant Park Development Partners LLC, the Durst Manager LLC and Tishman Construction Corporation. Plaintiff then commenced the instant action against Bank of America Corp and Structure Tone Inc. While the plaintiff’s motion to consolidate the two actions was pending, the defendants who were sued in earlier action moved for summary judgment dismissing all claims against them. At that time, Justice York granted the motion for summary judgment prior to the consolidation and dismissed the entire complaint including those claims for common law negligence and violation of Labor Law §§ 200 and 241(6). This decision was affirmed by the Appellate Division, First Department. See Stier v. One Bryant Park LLC et al., 113 A.D.3d 551, 979 N.Y.S.2d 65 (1st Dep’t 2014). In regard to the motion for summary judgment in the instant action, Justice Mendez held that the defendants Bank of America Corp. and Structure Tone, Inc. established their entitlement to summary judgment on the common law negligence and Labor Law §200 claims because they had no prior notice of the masonite placed in front of the elevator door. The defendants established that Bank of America Corp. did not control the work site or supervise or control plaintiff’s work and did not have actual or constructive notice of the allegedly defective masonite. Similarly, the defendants established that Structure Tone, Inc. had no presence on the subject property, and therefore could not have supervised or controlled plaintiff’s work and could not have had notice of an alleged defective condition involving masonite. Regarding the Labor Law §241(6) cause of action, the Court held that defendants provided evidence that Industrial Code Rules 23-1.7(d), (e)(1) and (e)(2) were not applicable to the facts surrounding plaintiff’s accident. The Court noted that both Justice York and the First Department previously found there was no evidence plaintiff’s accident was the result of a failure to remove or cover a foreign substance, and masonite is not a slipping hazard contemplated by Rule 23-1.7(d). Additionally, Rule 23-1.7(e), which requires work areas to be kept free of tripping hazards, was held to be inapplicable because the plaintiff did not allege that he tripped on an accumulation of dirt or debris. Rather, the plaintiff testified that he slipped on an unsecured piece of masonite, which was not a tripping hazard. Justice Mendez held that plaintiff failed to raise an issue of fact as to the Industrial Code Rules.
Stier v. One Bryant Park LLC et. al., Index. No 103134/2009 (N.Y. Co. Sup. Ct., Apr. 28, 2017)
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