Firm News

New Jersey Appellate Court Upholds Dismissal of Plaintiff’s Claims Arising From Construction Accident on Goethals Bridge Finding That New Jersey Law and Not New York Law Applied and Defendants Were Not Negligent Under New Jersey Law

In a decision dated March 4, 2025, the Superior Court of New Jersey, Appellate Division, denied the plaintiff’s appeal and upheld the lower court’s Order granting our clients, defendants NY-NJ Link Developer, LLC, Macquarie Group Limited, Kiewit Development Company and The Port Authority of New York and New Jersey’s motions for summary judgment dismissing the plaintiff’s complaint related to a workplace incident in which he sustained injuries while working as a laborer on the Goethals Bridge construction project.  The plaintiff, while working on the New Jersey side of the project on October 26, 2017, was struck in the back when an excavator swung a crane mat allegedly without proper signaling. Despite the plaintiff living in New Jersey, getting injured while on the New Jersey side of the bridge and getting his job through a New Jersey union, he brought claims in a New Jersey court alleging negligence under New Jersey law as well as violations of the New York Labor Law.  The New York Labor Law has strict liability provisions which allow workers an easier time to bring a claim against owners and general contractors. In both the lower court and on appeal, our firm successfully argued that New York law did not apply to the case requiring dismissal of all New York Labor Law claims.  The Appellate Division also held that the defendants were not negligent under New Jersey law ruling that the defendants did not owe the plaintiff a duty of care because were considered general contractors and not liable for the subcontractor’s alleged negligence.

Erwin Campoverde v. NY-NJ Link Developer, LLC et al., 2025 WL 682311 (Mar. 4, 2025)

On February 20, Thomas J. Hall, Bryan F. Tiggs. and Nicole G. Vevante lectured at a Symposium for Travelers Construction Claims entitled “Strategies to Combat Tactics of Plaintiff’s Counsel in High Exposure Personal Injury Litigation” in New York, New York.

Court Denies Plaintiff’s Motion for Summary Judgment on His Labor Law §§240(1) and 241(6) Claims In Accident Involving Fall From Extension Ladder

In a decision dated February 5, 2025, the Hon. Elena Goldberg-Velazquez of Westchester County Supreme Court denied the plaintiff’s motion for summary judgment which sought judgment as a matter of law against our client, Orienta Beach Club, on his causes of action pursuant to Labor Law §§240(1) and 241(6). The plaintiff, an employee of CertaPro Painters, alleged he was injured on May 5, 2023, when the extension ladder he was climbing “slid out” as he was trying to climb to the roof of a cabana to perform work, causing him to fall. In denying the plaintiff’s motion for summary judgment on §240(1), the Court held the defendant’s expert raised a triable issue of fact as to whether the angle the plaintiff placed the ladder against the cabana was the sole proximate cause of his accident. In denying the plaintiff summary judgment on his §241(6) cause of action, the Court held the defendant’s expert raised a triable issue of fact as to whether Industrial Code Rules 23-1.21(b)(4)(ii) and 23-2.1(b)(4)(iv) were violated.

Anthony Pugliese v. Orienta Beach Club, Inc., Index No. 68905/2023 (Sup. Ct. Westchester Co., Feb. 5, 2025)

Court Dismisses Plaintiff’s Complaint and All Cross-Claims Against Contractor in Labor Law Action

In a decision dated January 15, 2024, the Hon. Joy Campenelli of Kings County Supreme Court granted our summary judgment motion seeking dismissal of the plaintiff’s complaint and all cross-claims against our client, JT Magen & Company Inc. (“JT Magen”). The plaintiff, an employee of Sal’s Scrap Metal, alleged that he was injured while picking up debris from a construction project at 485 Lexington Avenue in New York, New York, when he was struck by a hook connected to a trailer winch that came loose from a dumpster. Our client had done work in the building previously, but was not the general contractor on the project that the plaintiff was working on when the accident occurred and had no connection to the accident. Ultimately, the Court agreed that JT Magen was not a Labor Law defendant, was not negligent and did not owe contractual or common law indemnity or contribution to any party.

Krzystof Torba v. Green 485 TIC LLC, et. al, Index No. 516622/2016 (Sup. Ct. Kings Co., Jan. 15, 2025)

Second Department Reinstates Defendant’s Affirmative Defense of Comparative Fault In Motor Vehicle Accident Case Where Plaintiff Was Awarded Summary Judgment on Liability

In a decision dated November 27, 2024, the Appellate Division, Second Department modified the lower Court’s decision by adhering to that portion of the decision which granted plaintiff summary judgment on liability while reinstating our clients Michael Colonna and Royal Realty Corp.’s affirmative defense of comparative fault, which was dismissed by the lower Court. This personal injury action arises out of a motor vehicle accident that occurred on February 9, 2021, on 49th Street at its intersection with Second Avenue in New York, New York. Before depositions, plaintiff moved for summary judgment on liability as well as the dismissal of our clients’ comparative fault affirmative defense, based on the fact that his vehicle was hit in the rear. In opposing plaintiff’s motion, we argued that there is a non-negligent explanation for the accident—that plaintiff stopped short for no apparent reason—which precludes summary judgment in favor of plaintiff on the issue of liability. The lower Court granted plaintiff summary judgment on liability and dismissed our clients’ affirmative defense of comparative fault. On appeal, although the Second Department affirmed summary judgment in plaintiff’s favor on liability, it reinstated our clients’ comparative fault affirmative defense. Prior to this decision, our clients were confined to a damages-only trial with no ability to offset plaintiff’s damages due to his own culpable conduct in how he operated his vehicle, i.e., there would have been no apportionment of fault to plaintiff because our clients’ comparative fault affirmative defense had been dismissed. As a result of this decision, our clients’ can now argue that plaintiff was also at fault, reducing the damages attributed to our clients.

Casimiro Reyes Martinez v. Michael Colonna et al., 232 A.D.3d 876, 222 N.Y.S.3d 146 (2d Dep’t 2024)

Court Dismisses Plaintiff’s Complaint in Slip and Fall Accident Involving Alleged Water Condition on Basement Floor

In a decision dated December 5, 2024, the Hon. Ulysses B. Leverett granted our client 82 Associates LLC’s motion for summary judgment dismissing the plaintiff’s complaint as a matter of law. The plaintiff alleged that he slipped and fell in the basement of the premises known as 37-02 82nd Street, Jackson Heights, New York, due to water or other wet substance. It is claimed that 82 Associates, the owner of the premises, was negligent in permitting the water or other wet substance to become and remain at the location and that it had actual and constructive of the condition. At his deposition, the plaintiff testified as part of his morning “sweep” of the premises, he went down the stairs to the basement and walked across the section of floor where he subsequently slipped on his way to the lunchroom. He did not observe water on the floor and/or have difficulty walking in the area. After the plaintiff completed his morning “sweep” of the basement, and as he was returning to the main level, his left foot slipped on droplets of water on the floor and he fell. Plaintiff admitted that he believed the water had come from the drain in the basement. He admitted that he did not see water coming from the drain and did not know where the water came from or when the water spilled to the ground. The plaintiff referred to a past flood in a different location resulting from the roof and another incident which involved water backup, subsequent to his accident, resulting from heavy rain. In opposition to the motion, plaintiff argued that an owner has a continuing duty to exercise reasonable care to maintain its property under the circumstances. Plaintiff also argued that the defendant was aware that water would flow from the drain. However, the Court found that 82 Associates’ general awareness of this recurring condition was insufficient to establish its constructive notice of the alleged water on the basement floor which allegedly caused the plaintiff to fall. Here, the plaintiff was unable to testify that he observed any water in the area he was walking in, before he fell. Further, there was no evidence the condition existed for a sufficient length of time prior to the accident. According to the Court, plaintiff’s inability to make the required showing “‘create[d] the possibility that the condition may have emanated only moments before the accident, through no fault or with no knowledge of the defendant, any other condition being pure speculation’”. In light of the foregoing, the Court granted 82 Associates summary judgment dismissing the plaintiff’s complaint because the plaintiff failed to raise an issue of fact whether the defendant had notice of the condition which allegedly caused plaintiff’s fall and because plaintiff failed to establish, in opposition to the motion, that the source of the water at issue was the drain system and that the defendant had immediate notice of it.

Higinio Hago v. 82 Associates LLC et al., Index No. 701065/2020 (Sup. Ct., Queens Co., Dec. 5, 2024)

First Department Reverses Lower Court’s Decision and Dismisses All Claims Against Plumbing Contractor in Subrogated Matter Arising From Fire Loss

In a decision dated October 3, 2024, the Appellate Division, First Department reversed a lower court decision denying our client, PSI Plumbing, summary judgment dismissing all claims against it. This subrogation action arises out of a fire that occurred on June 5, 2013, at the Lexington Hotel located in New York, New York.  In 2011, more than two years before the fire, the Hotel observed water entering the building through a point of entry for Consolidated Edison’s electrical facilities and leaking onto a box housing the Hotel’s electrical equipment in its subbasement. Shortly after the water was discovered, Con Edison performed a dye-test, which confirmed that the water was coming from its vault. Approximately two years later, in early 2013, the Hotel undertook a remediation project which involved relocating most of its electrical equipment from the subbasement to the basement. The Hotel’s prime contractor, Integral, hired PSI to relocate certain water lines to accommodate the electrical scope of work. Following the fire, the insurance companies for the building commenced suit against Con Edison. Con Edison filed a third-party action against PSI and a number of subcontractors seeking common law indemnity and contribution. In the underlying motion, we argued that Con Edison could not be entitled to common law indemnity as a matter of law because the only claims against it were for common law negligence (i.e., it was not subject to statutory or vicarious liability). We also argued that because PSI was not negligent, there was no basis for an apportionment of fault against it and Con Edison’s contribution claims should also be dismissed. The lower Court denied the motion based on a finding that there was a question of fact regarding whether PSI launched a force or instrument of harm. On appeal, the First Department unanimously agreed with our argument that the lower Court erred in finding a question of fact because PSI did not work on the point of entry and based on the undisputed evidence that Con Edison’s vault, not PSI’s work, was the source of the water.

Ace American Insurance Company v. Consolidated Edison Company of New York, Inc., 2024 WL 4375426, 231 A.D.3d 421, – N.Y.S.3d – (1st Dep’t 2024)

Michael Tobin Obtains Defense Verdict in Construction Accident Case

Recently, Partner Michael Tobin obtained a defense verdict in the Court of Claims, dismissing all of the claimant’s causes of action against our client, The State of New York, pursuant to Labor Law §§240(1) and 241(6).  The claimant, a Local 731 journeyman laborer, alleges that he was working on the Slosson Avenue Overpass in connection with the reconstruction of the Staten Island Expressway and Bus/HOV Lane Extension, when his safety harness became caught on an exposed piece of rebar causing him to fall and sustain personal injuries. In her July 26, 2024 decision dismissing the lawsuit, Judge Rodriguez-Morick held that the claimant failed to meet his burden by establishing a violation of the Labor Law because he “testified incredibly” given the evidence that the defense was able to establish at trial.  The Court held that defendants’ evidence was credible because it included the detailed testimony of the claimant’s non-party employer’s safety manager regarding the bridge’s demolition procedure with supporting time-stamped photographs, as well as his testimony regarding his contemporary accident reporting with statements and photographs.  Mr. Tobin was able to effectively cross-examine the claimant to highlight the inconsistencies of his testimony against the defendant’s evidence, as well as his own testimony.   The Court held that its reservations about the claimant’s “accuracy and credibility prohibit it from finding liability against the State on this record.”

Calvin Ross v. The State of New York, Index No. 522934/2018 (Court of Claims, July 24, 2024)

Court Denies Plaintiff’s Motion for Summary Judgment on Labor Law §240(1) Claim Finding Questions of Fact Regarding Whether Labor Law Was Violated

In a decision dated July 24, 2024, Hon. Joy F. Campanelli denied plaintiff’s motion seeking summary judgment on his Labor Law §240(1) cause of action against our client, New York City Transit Authority. At the time of the accident, plaintiff was engaged in leveling and smoothing wet concrete on the pedestrian platform being poured for the subway. At the same time, laborers were involved in cleaning excess concrete from the concrete pipes and hoses, known as “shooting the rabbit.” The laborers used air pressure and a rubber ball to clear the concrete lines. The plaintiff was not directly involved in the pipe cleaning process. He claims that to perform his work he stood on a wood scaffold that was approximately 700 feet in length and four to five feet above the track. Plaintiff claims that he was struck by sprayed concrete when the rubber ball got stuck and then exploded out of the pipe, spraying concrete and causing the hose to fish tail. He claims this caused him to fall off the scaffold and onto the tracks. In opposition to plaintiff’s motion, we argued that the four-foot tall “scaffold ” was actually a concrete form and not a scaffold or a surface plaintiff was expected to stand on. We argued that plaintiff should have been standing on a different platform, which was only 18 inches tall, and that this was the appropriate safety device for him to use. We also argued that, due to the nature of the work, a safety railing on the 18-inch-tall platform would have interfered with the work and a safety harness and lanyard would not have been appropriate given that the maximum height at issue was only four feet. During oral argument, Judge Campanelli asked the plaintiff how he could have stood on the “teeny tiny ledge” created by the concrete form, pushed a “bull float” (which the Judge pointed out was operated with an 18-foot long poll) and not fallen off the “teeny tiny ledge.” She said “teeny tiny platform” at least five times, and really seemed to take exception with plaintiff’s claim. The Court ultimately denied the plaintiff’s motion on his Labor Law §240(1) claim finding questions of fact as to whether the Labor Law was violated.

Anibal Barros et al. v. New York City Transit Authority et al., Index No. 522934/2018 (Sup. Ct. Kings Co., July 24, 2024)

We are pleased to announce that Ben Shatzky has become a Partner of the Firm.