Firm News

Court Dismisses Plaintiff’s Complaint in its Entirety as to Defendants in Construction Accident Case

In a decision dated October 6, 2017, the Hon. Lisa S. Ottley granted our clients, the owners and tenants of the premises under construction at 4 Metrotech Center, Brooklyn, New York, summary judgment dismissing the plaintiff’s complaint in its entirety. The plaintiff, a laborer employee of the general contractor, Plaza Construction, claimed injuries when he fell off a ladder. The plaintiff was performing cleaning activities when his foreman grabbed a ladder and instructed him to remove certain items hanging from the ceiling which were left over from the removal of HVAC ductwork by the demolition contractor. The foreman climbed the ladder and showed the plaintiff how to perform the task. He also supplied the plaintiff with all the hand tools needed for the job. During the course of extensive questioning over two deposition sessions, the plaintiff admitted that the ladder was in good working condition and defect free. He also admitted that in performing this task he moved the ladder on three occasions in the same area. The incident did not occur until the plaintiff had placed the ladder in the third spot. He again testified that the ladder was sturdy and did not move during the time he was using it. He claimed to have fallen after using two hands to yank a certain item free from the ceiling. The plaintiff brought claims against the defendants for common law negligence and violations of Labor Law §§200, 240(1) and 241(6). In denying the plaintiff’s motion for summary judgment in its entirety and granting the defendants’ motion to dismiss the complaint, the Court held that the defendants had met their prima facie burden and the plaintiff had failed to do so. The Court agreed with the defendants that there was nothing in the record to support the plaintiff’s claims of negligence and violations of the various Labor Law statutes. The court also found that the plaintiff had been provided with the proper equipment needed to successfully perform the tasks assigned. The plaintiff merely relied on a theory that because he was a construction worker and fell from a ladder the Labor Law was automatically violated. The Court agreed with the defendants that a more in depth showing was required including the specific facts surrounding the incident itself.

Newland v. New York City Industrial Development Agency, et al., Index No.1015/15 (Kings Co. Sup. Ct., Oct. 6, 2017)

Court Grants Summary Judgment to Contractor in Bicycle Accident Case

In a decision dated September 15, 2017, Justice Thomas P. Aliotta granted our client, defendant CCA Civil Inc., summary judgment dismissing the plaintiff’s complaint against it as a matter of law. The plaintiff claimed that he sustained injuries on November 6, 2012, when he fell off his bicycle while riding on the sidewalk. The left handlebar of his bicycle allegedly struck an orange road sign that had become detached from a wooden frame and was situated on the ground and protruding three to four inches onto the sidewalk. At the time of the accident, a construction project was underway which involved the reconstruction of the Staten Island Expressway along the stretch of Narrows Road where plaintiff’s accident occurred. CCA had a contract with the State of New York Department of Transportation for the Staten Island Expressway project. The Court held that CCA established its prima facie entitlement to summary judgment as a matter of law by setting forth evidence that the plaintiff was not a party to its contract with the NYSDOT for the reconstruction of the Staten Island Expressway, and therefore owed plaintiff no duty of care. The Court held that assuming arguendo that the pleadings alleged facts which would establish the applicability of various exceptions to the no-duty rule espoused by the leading Court of Appeals decision in Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002), the plaintiff’s motion papers failed to raise any triable issue of fact that would support an exception to Espinal. The Court found the relevant contract terms, diagrams and drawings clearly depicted that the area in question was not within the boundaries of the work performed by CCA. The Court also found there was no evidence CCA had actual or constructive notice of the alleged defect for a sufficient length of time prior to the accident. The Court further held that plaintiff’s conclusory assertion that CCA had constructive notice of the defective sign was legally insufficient, noting that the plaintiff admitted at his 50-h hearing that he himself did not see the subject sign before his accident. Finally, the Court held that based on plaintiff’s photographs, which he testified fairly and accurately represented the accident site, the orange road sign at issue was readily observable by a reasonable use of the plaintiff’s senses and the condition of the roadway was not inherently dangerous.

Cortes v. City of New York, et al., Index. No 100118/2014 (Richmond Co. Sup. Ct., Sept.15, 2017)

We are pleased to announce that Seth Cohn has become a Partner of the firm.

Appellate Division, Second Department Affirms Dismissal of Action Against Defendants

In a unanimous decision dated August 16, 2017, the New York State Appellate Division, Second Department affirmed the lower court’s dismissal of the plaintiff’s complaint including those causes of action for common law negligence and violations of Labor Law §§200, 240(1) and 241(6) as to our clients, Hill International, Inc., Lemley Hill International, Inc., Lemley International Inc., LIRO Engineers, Inc. and A Daniel Frankfurt Engineers & Architects/HDR Inc., A Joint Venture. The plaintiff sought damages for personal injuries allegedly sustained while working on a project involving the extension of the #7 New York City Subway Tunnel. The plaintiff alleged that he fell from a stack of blasting masts while he was in the process of descending same. In affirming the lower court’s decision, the Appellate Division held the defendants’ evidence that they were not agents of the MTA and neither instructed nor supervised plaintiff was sufficient to make a prima facie showing of the entitlement to judgment as a matter of law, dismissing plaintiff’s causes of action for common law negligence and violations of Labor Law §§200, 240(1) and 241(6).

Lamar v. Hill Int’l, Inc., 153 A.D.3d 685 (2d Dep’t 2017)

Court Dismisses Complaint In Construction Accident Case Involving Fall from Ladder

In a decision entered on August 9, 2017, Justice Lucy Billings granted the summary judgment motion of our clients, City of New York (“City”) and New York City Department of Transportation (“DOT”), dismissing the plaintiff’s complaint in its entirety. Plaintiff sought damages for personal injuries allegedly sustained on May 17, 2010, when his left foot slipped off a rung then fell two rungs down before catching on the third rung down as he was descending a 20-foot extension ladder. After the close of discovery, the defendants moved for summary judgment seeking to dismiss the plaintiff’s complaint on the grounds that his fall from an allegedly “steep” ladder was not caused by the City’s and the DOT’s negligence or any violations of Labor Law §§200, 240(1) and 241(6). Plaintiff argued that the subject ladder was too steeply pitched, in violation of Labor Law §§240(1) and 241(6) premised upon Industrial Code Rule 1.21(b)(4) (which states that “a ladder shall be inclined a maximum of three inches for each foot of rise”). In granting the motion of the City and DOT, Justice Billings found that plaintiff’s argument “defie[d] the plain language of the regulation, physics, math, common sense” in that both his counsel and expert misread the regulatory language as being a minimum requirement, when it was a maximum requirement for the incline or pitch of the ladder. Justice Billings then confirmed that plaintiff’s expert failed to cite to any industry standards delineating the correct pitch of a ladder.

Joseph Mitchell v. The City of N.Y. et al., Index No. 100256/11 (N.Y. Co. Sup. Ct., Aug. 9. 2017)

Court Grants Summary Judgment to Contractor and City Defendants in Highway Automobile Accident Case

In a decision dated August 3, 2017, Justice Debra A. Silber granted the summary judgment motion of our clients, Tully Construction Co., Inc. and the City of New York, dismissing the plaintiff’s complaint and all cross-claims against them. The plaintiff sought damages for personal injuries sustained in an automobile accident that occurred shortly after midnight on August 24, 2012.  After being involved in a minor two car accident, the plaintiff and another driver stopped their vehicles in the left westbound lane of the Belt Parkway and exited their vehicles. Another vehicle then struck the plaintiff’s stopped vehicle in the rear, propelling it into him. The accident occurred in the construction zone for Tully’s work, but work was not taking place at the time of the accident. In granting the motion of Tully and the City, Justice Silber found that “there is not a shred of evidence that the inactive construction site on the Belt Parkway was in any way a contributing factor to either of the accidents.”

Laurent v. Belony, et al., Index No. 3611/13 (Kings Co. Sup. Ct., Aug. 3, 2017)

Stephen M. Cohen Wins Defense Verdict in Action Arising from Negligent Operation of Motor Vehicle Into a Construction Staging Area

The plaintiff, a 74-year-old passenger in a vehicle owned and operated by defendant Stephen Naklicki, sought damages for personal injuries sustained in an accident that occurred in the predawn hours of Monday, August 5, 2013, in a closed truck inspection area which was being utilized by our client, Kiska Construction Inc., as a “staging area” in connection with its rehabilitation of nine bridges project. The staging area was located along the eastbound Long Island Expressway approximately one-half mile west of Exit 66. Mr. Naklicki, who intended to exit at Exit 66, allegedly became confused by the absence of any “ramp closed” signs and drove directly into the staging area, crashing through a chain link fence and finally, crashing into stored concrete barriers that plaintiff argued, were partially on the paved road. Plaintiff alleged that Kiska was negligent in failing to provide adequate signage, warnings and traffic control devices and in otherwise failing to properly close an exit ramp/access road in accordance with the New York State Highway Law, NYSDOT Standard Specifications Section 619 (maintenance and protection of traffic) and the Manual for Uniform Traffic Control Devices. In December, 2016, plaintiff settled with Mr. Naklicki. Following a jury trial on liability before Hon. Janice A. Taylor, Kiska successfully obtained a defense verdict thereby dismissing the plaintiff’s case.

Stoehr v. Stephen Naklicki and Kiska Construction, Inc., Index No. 707071/14 (Queens Co. Sup. Ct., Jul. 24, 2017)

Court Grants Summary Judgment to Prime Contractor

In a decision dated July 20, 2017, Justice Gerald E. Loehr granted the summary judgment motion of our clients, Skanska USA Civil Northeast Inc., Tully Construction Co. Inc. and Skanska/Tully JV, dismissing the plaintiff’s complaint and all cross-claims against them as a matter of law. Skanska and Tully were members of a joint venture called Skanska/Tully JV, which was a prime contractor.  The plaintiff sought to recover for injuries he allegedly sustained when he fell from a ladder while performing work at the Croton Water Treatment Plant in Bronx, New York. He commenced a lawsuit against, among others, our clients seeking to recover damages pursuant to Labor Law §§200, 240(1) and 241(6) and for common law negligence. In dismissing the plaintiff’s complaint, the Court found that our clients submitted sufficient evidence in admissible form proving that the joint venture was a prime contractor which did not have authority to (and did not) supervise the plaintiff’s work in connection with this accident. Accordingly, the Court found that Skanska, Tully and Skanska/Tully could not be held liable for the plaintiff’s accident.

Maloney v. Skanska USA Civil Northeast Inc., et al., Index No. 030879/14 (Rockland Co. Sup. Ct., Jul. 20, 2017)

Court Dismisses Plaintiff’s Complaint Against Defendants in Construction Accident Case

In a decision dated July 19, 2017, Judge Erika Edwards of New York County Supreme Court, issued a decision dismissing plaintiff’s complaint in its entirety. The plaintiff was a union laborer performing work on the East Side Access project. He was injured on November 11, 2011, when he was allegedly struck by a compressor cable and parts of a chipping gun and slid down a 30-degree incline 10 to 15 feet in an area being built for an escalator. The plaintiff moved for summary judgment on Labor Law §§240(1) and 241(6) against defendants, URS Corporation, URS Corporation-New York, URS Greiner Woodward-Clyde Consultants, URS Group, Inc. and Bechtel Infrastructure Corporation. The plaintiff was employed by a subcontractor of the MTA. The claims against the MTA were previously dismissed based on the plaintiff’s service of a late notice of claim. The remaining defendants were successful in arguing that none of themwere proper Labor Law defendants, particularly that none were agents of the owner, and that none of the defendants supervised or controlled plaintiff’s work in any manner. The court pointed out that the plaintiff himself testified that his work was supervised and controlled by his employer. The court denied plaintiff’s motion for summary judgment and granted the motion on behalf of the defendants dismissing all causes of action.

Francis v. URS Corporation et al., Index No. 156959/2013 (N.Y. Co. Sup. Ct., July 19, 2017)

Court Dismisses Complaint In Its Entirety Against Labor Law Defendants

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)