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Court Grants Defendant’s Pre-answer Motion and Dismisses Plaintiff’s Complaint as a Matter of Law

published on January 24, 2024

In a decision dated January 23, 2024, the Hon. Lizette Colon of Richmond County Supreme Court granted our pre-answer motion to dismiss the plaintiff’s complaint against our client, the Baron Hirsch Cemetery Association, Inc. (“BHCA”). The plaintiff, Rocco’s Landscaping & Concrete Service, LLC, was a contractor retained by BHCA to perform groundskeeping work at the cemetery. Ultimately, the lawsuit commenced by Rocco’s was ancillary to a separate lawsuit for the allegedly wrongful death of one of Rocco’s employees while performing groundskeeping work at the cemetery. In its complaint, Rocco’s set forth causes of action for intentional infliction of emotional distress, defamation and wrongful termination under New York’s whistleblower law. Judge Colon agreed with our argument that the plaintiff failed to state a cause of action for intentional infliction of emotional distress based on Rocco’s corporate status (i.e., a corporate entity cannot be distressed). The Judge also agreed with our argument that Rocco’s failed to state a cause of action for defamation since the allegedly defamatory statements were made in connection with the underlying lawsuit and, therefore, subject to an absolute privilege. Finally, the Judge agreed that Rocco’s failed to state a cause of action under New York’s whistleblower law since Rocco’s was not an employee of BHCA and does not meet the definition of a whistleblower under the statute. Further, the Court granted our request for an award of costs and sanctions for the plaintiff’s asserting and continuing of a patently frivolous action.  

Rocco’s Landscaping and Concrete Serv., LLC v. Baron Hirsch Cemetery Assoc., Inc. et al., Index No.: 151682/2023 (Sup. Ct. Richmond Co., Jan. 23, 2024)

We are pleased to announce that Karen Maniscalco, Thomas Ryan and Thomas Cirone have become Partners of the Firm.

published on January 02, 2024

Court Dismisses Third-Party Plaintiffs’ Complaint Against Contractor in Action for Property Damage Allegedly Caused by Water Penetrating Moisture Barrier

published on December 14, 2023

In a decision, dated December 12, 2023, the Hon. Debra A. James granted the motion brought by our client, Adelphi Restoration Corp., and dismissed the third-party plaintiffs’ complaint in its entirety as a matter of law with prejudice.  The third-party plaintiffs alleged damage to their apartment due to water damage that was penetrating the exterior moisture barrier. In reaching its decision, the Court determined that the negligence cause of action was dismissed as time barred.  The common law and contribution claims were dismissed as the claims against our client were for purely economic damages.  Finally, the claim for common law indemnity was dismissed for the failure to state a cause of action as the third-party plaintiff would never be liable to another due to Adelphi’s alleged negligence.     

Anthony Gordon v. 476 Broadway Realty Corp. et al., Index No. 103951/2012 (Sup. Ct. N.Y. Co., Dec. 12, 2023)

Court Dismisses Plaintiff’s Complaint in Construction Accident Case Involving a Union Laborer Who Was Struck By a Swinging Load on a Crane and Then Fell Into an Adjacent Trench

published on November 10, 2023

In a decision dated November 3, 2023, the Hon. Stephen L. Petrillo granted the motion brought by our clients NY-NJ Link Developer, LLC, Macquorie Group Limited, Kiewit Development Company and The Port Authority of New York and New Jersey and dismissed plaintiff’s complaint in its entirety as a matter of law with prejudice. This litigation arises out of the Goethals Bridge Replacement Construction project (“the Project”).  Plaintiff, a union laborer out of Local 472 employed by Kiewit-Weeks-Massman, AJV, alleges that he was injured on October 26, 2017, when he was struck on the left side of his body by a swinging load on a crane that caused him to fall into an adjacent trench and sustain various personal injuries. In reaching its decision, the Court found that New Jersey law applied and that our clients did not owe a duty of care to plaintiff. The Court endorsed our choice of law analysis and agreed that our clients, the ownership entities of the Project, did not have any direct or indirect involvement in the means and methods of the plaintiff’s work and that none of the exceptions to the general rule applied, contrary to plaintiff’s arguments.

Erwin Campoverde v. NY-NJ Link Developer, LLC et al., Index No. ESX-L-6909-18 (N.J. Sup. Ct. Essex Co., Nov. 3, 2023)

Court Dismisses Plaintiff Carpenter’s Complaint Where He Stepped or Slipped Into a Hole in Decking

published on October 02, 2023

In a decision dated August 25, 2023, the Hon. Paul A. Goetz denied plaintiff’s motion seeking summary judgment on his Labor Law §240(1) claims and granted our clients, Tishman Construction Corporation and the Port Authority of New York and New Jersey summary judgment dismissing the plaintiff’s complaint in its entirety.  Briefly, the plaintiff, a union carpenter, claimed that he was injured when he stepped or slipped into an opening in the incomplete core slab plywood decking, causing him to fall part way through the opening. In his decision, Judge Goetz found that the plaintiff’s alleged accident fell within the scope of Labor Law §240(1), but determined that there was no violation since we proved that the nature of the work taking place at the accident location precluded the use of a cover over the hole or barricades around it. Judge Goetz agreed with our argument that, in opposition to our motion the plaintiff failed to raise a question of fact regarding the failure or inadequacy of any other safety device that would give rise to a violation. Essentially, Judge Goetz concluded that the defendants established that “the accident was caused by an ordinary peril of the worksite,” which did not fall within the scope of Labor Law §240(1).

With respect to the plaintiff’s Labor Law §241(6) claim, predicated on an alleged violation of Industrial Code Rule 23-1.7(b)(1) (protection from hazardous openings), Judge Goetz determined that the Rule was inapplicable since the hole that the plaintiff stepped or slipped into was too small for the plaintiff to fall through. Therefore, he determined that the Rule was inapplicable and could not have been violated. Judge Goetz also found that our clients were entitled to dismissal of the plaintiff’s Labor Law §200 and common law negligence claims against them since the accident was caused by the means and methods of the plaintiff’s work, which the defendants did not supervise, direct or control.

Javier Munoz v. Tishman Construction Corporation, etc. al, Index No. 160836/2016 (Sup. Ct. N.Y. Co., Aug. 25, 2023)

Court Denies Plaintiff’s Motion for Summary Judgment on Labor Law §§240(1) and 241(6) Claims, Dismisses Plaintiff’s Labor Law §200 Claim Against Contractor and Grants Contractor Conditional Contractual Indemnity Against Painting Subcontractor

published on September 06, 2023

In a decision dated August 3, 2023, the Hon. Nancy Quinn Koba denied plaintiff’s motion seeking summary judgment on his Labor Law §§240(1) and 241(6) claims, granted our client Yonkers Contacting Company, Inc. conditional summary judgment judgment on its claim for contractual indemnification against Allied Painting, Inc.; and granted YCC summary judgment dismissing plaintiff’s Labor Law §200 claim against it. With respect to plaintiff’s Labor Law §240(1) claim, Judge Koba concluded that, while plaintiff was performing elevation-related job duties at the time of his accident, and that the truck platform lacked guardrails, he failed to establish that he was not provided with adequate fall prevention safety devices (the safety harness and lanyard with tie-off points). Judge Koba determined that triable issues of fact exist as to whether plaintiff was provided with adequate safety devices, whether there was a violation of Labor Law §240(1), and whether the plaintiff was the sole proximate cause of his injuries for failing to tie off. In her decision, the judge referenced the testimony of a witness who testified that once plaintiff stepped onto the truck, he removed his safety harness and did not put it back on prior to the accident. There were numerous other occasions when plaintiff failed to tie off, as well.

With respect to plaintiff’s Labor Law §241(6) claim predicated on an alleged violation of Industrial Code Rule 23-5.1(j)(1) (requiring the open sides of all scaffold platforms be provided with safety railings), Judge Koba determined that the subject truck platform and wings were used as a substitute for a scaffold. Therefore, Rule 23-5.1 governed the safety requirements applicable to the truck platform. Since it is undisputed that the truck platform and wings lacked safety railings, Judge Koba ruled that plaintiff proved that Rule 23-5.1(j)(1) was violated. However, a violation only constitutes some evidence of negligence, and a jury must determine whether the “equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.” Additionally, Judge Koba held that if it is determined that plaintiff was the sole proximate cause of his injuries, then that would serve as a complete defense to plaintiff’s Labor Law §241(6) claim.

Judge Koba granted YCC conditional summary judgment on its motion against Allied Painting for contractual indemnity. YCC established that it was free from negligence, and that any liability would solely be statutory in nature. As such, in the unlikely event that plaintiff establishes Labor Law liability at trial, YCC is entitled to full contractual indemnity from Allied Painting.

Rogerio Desouza v. Yonkers Contracting Company, Inc., Index No. 55259/2020 (Sup. Ct. Westchester Co., Aug. 3, 2023)

First Department Affirms Lower Court Decision Granting Defendants’ Motion to Compel Unrestricted Authorizations Relating to Plaintiff’s Prior Accidents and Treatment

published on May 31, 2023

In a decision dated May 20, 2023, the Appellate Division, First Department affirmed a lower court decision granting the motion of our clients J.T. Magen & Company Inc. Nordstrom, Inc. Broadway 57th/58th Retail Investor, LLC, 1790 Broadway Associates LLC and ULM I Holding Corp. to compel the plaintiff to provide certain discovery. The plaintiff, a union sheet metal worker, alleged that he injured multiple body parts at work when he was struck by falling ductwork. Through investigation, we learned that he had been involved in a prior workplace accident and a motor vehicle accident and had undergone multiple surgeries. We filed a motion to compel the plaintiff to provide unrestricted authorizations for the defendants to obtain records relating to his prior accidents and treatment. The First Department unanimously affirmed the lower Court’s Order granting our motion based on a finding that the plaintiff had affirmatively placed his prior accidents and treatment in issue by commencing this lawsuit. While the plaintiff did not claim to have reinjured any of the same body parts, he did make general allegations regarding claimed restrictions on certain activities of daily living. The First Department agreed that records pertaining to the prior accidents and treatment were discoverable as the defendants were entitled to explore whether the claimed restrictions and limitations could have been caused by any of the prior accidents or treatment.

Carlos Villanueva v. J.T. Magen & Company Inc. et al., 2023 WL 3696458, —N.Y.S.3d— (Sup. Ct. Kings Co., May 4, 2023)

Court Denies Summary Judgment to Plaintiff Laborer Who Removed Plywood Covering a Vent Shaft

published on May 18, 2023

In a decision dated May 4, 2023, the Hon. Delores J. Thomas of Kings County Supreme Court denied the plaintiff’s motion for summary judgment against our clients, New York City Transit Authority and Metropolitan Transportation Authority, on his causes of action alleging violations of Labor Law §§240(1) and 241(6). The plaintiff, a journeyman laborer, was employed by the general contractor on a project involving the installation of subway flood mitigation products in sidewalk vent grates above vent shafts.  At the time of the incident, the opening above a vent shaft was covered with a three-foot long piece of plywood weighed down by two 80-pound grates. The incident, which was captured on surveillance video, occurred when the plaintiff entered the cordoned-off work area, bent down and lifted the plywood covering, stepped forward and fell into the vent shaft. The plaintiff, who knew that the plywood covered the vent shaft, contended that he removed the plywood covering because it appeared to be debris and a potential tripping hazard; his supervisor testified that there was no reason for the plaintiff to be working in this area. In opposition, the defendants argued that the plaintiff failed to satisfy his initial burden of establishing that Labor Law §240(1) applies, based on his testimony that fall protection equipment was available to him but he did not need to use it because no work was being performed on the sidewalk vent grates, and there are triable issues of fact whether the statute was violated because the plaintiff gave contradictory testimony as to whether tie-off points for a safety harness were available. The defendants argued that the plaintiff failed to satisfy his initial burden of establishing a violation of Labor Law §241(6) because none of the cited Industrial Code regulations [23 NYCRR §§ 23-1.7(b)(1) (“Falling hazards- Hazardous openings”), 23-1.16 (“Safety belts, harnesses, tail lines and lifelines”) and 23-5.1 (“General provisions for all scaffolds”)] applied and proximately caused his fall.  The defendants also argued that the plaintiff was not acting within the scope of his employment at the time of this incident and that he was the sole proximate cause of his fall.  The Court denied the plaintiff’s motion on the grounds that there are questions of fact whether the plaintiff needed safety equipment and whether he had access to it, as well as questions surrounding the plaintiff’s fault.

Mario Torres v. New York City Transit Authority, et al., Supreme Court, Kings County, Index No. 511099/2019 (Sup. Ct. Kings Co., May 4, 2023)

On April 18 and May 8, Stephen M. Cohen and Thomas J. Hall lectured at a seminar for Electra, U.S.A. entitled “Incident Management Best Practices” in New York City.

published on April 18, 2023

Second Department Affirms Lower Court’s Dismissal of Plaintiff’s Negligence Claim In Case Involving Plaintiff Motorcyclist Who Struck Construction Barrel On Expressway

published on April 15, 2023

In a decision dated April 12, 2023, the Appellate Division, Second Department affirmed the Order of the Supreme Court, Kings County which granted our client CCA Civil-Halmar’s (“CCA”) motion for summary judgment dismissing the negligence action.  At approximately 12:15 a.m., the plaintiff was operating a motorcycle traveling on the Cross Bronx Expressway in the Bronx when, approximately 200 to 300 feet past the end of a temporary lane closure, his front tire ran over a flattened construction barrel that was situated across the center and right lanes of the three-lane roadway, causing him to lose control of his vehicle and fall to the ground.  CCA was a contractor on the New York State Department of Transportation’s (“NYSDOT”) project to rehabilitate a portion of the Cross Bronx Expressway.  

The plaintiff alleged that CCA was negligent by failing to adhere to the contract plans and specifications for placement and maintenance of construction barrels for the temporary lane closure.  The Second Department held that CCA satisfied its summary judgment burden by submitting evidentiary proof that, in performing its contracted work on the Project, its use of construction barrels complied with New York State Standard Specifications and the NYSDOT’s Work Zone Traffic Control Plan, and NYSDOT inspectors had approved the work. The Court held that plaintiff’s opposition failed to raise a triable issue of fact because there was no evidence that CCA’s use of construction barrels contravened the contract plans and specifications. The Second Department also held that the plaintiff failed to raise a triable issue of fact whether CCA launched a force or instrument of harm by failing to adhere to the contract plans and specifications and, therefore, CCA owed no duty to the plaintiff.

Elias Corniel, et al. v. CCA Civil-Halmar International, LLC, 215 A.D.3d 731, — N.Y.S3d— (2d Dep’t 2023)

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