Firm News

Kenneth J. Gormley lectured at a seminar for LSG Sky Chefs entitled “New York Construction Legal Environment,” in Irving, Texas.

Employer’s Liability Insurer Has No Obligation to Defend Third-Party Action In the Absence of A Grave Injury

In a decision dated March 16, 2015, Hon. Shlomo Hagler declared that our client, Insurance Company of the State of Pennsylvania (“ICOP”), is not obligated to defend or indemnify its insured Barrana Construction Corp. as a third-party defendant in a personal injury action brought under New York’s Labor Law. The injured worker sued the owner of the premises, L.C. Driggs Corp., which in turn brought a third-party action for common law indemnification against Barrana. ICOP first learned of the action when a default judgment was taken against Barrana. ICOP assigned counsel to attempt to get the default vacated while it investigated the loss. When the default was upheld, ICOP disclaimed on late notice grounds as well there being no coverage for the third-party claim in the absence of an allegation of a grave injury. After issue was joined by L.C. Driggs, ICOP moved for summary judgment. L.C. Driggs opposed on the grounds that the issue was not ripe for determination because there was no money judgment against Barrana. Judge Hagler held that ICOP need not wait for the entire underlying action to proceed in order to obtain a declaration of its rights and obligations. He granted ICOP’s motion and declared that ICOP has no obligation to defend or indemnify Barrana in the underlying action.

Ins. Co. of the State of Pa. v. Barrana Constr. Corp. et al., Index No. 650576/13 (N.Y. Co. Sup. Ct. March 16, 2015)

Court Grants Defendant Contractor Summary Judgment Dismissing Plaintiff’s Complaint and All Cross-Claims

In a decision dated January 20, 2015, Justice Paul Wooten granted our client Owen Steel Company Inc.’s motion for summary judgment which sought a 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). The plaintiff was an iron worker who allegedly fell off the side of a pickup truck while performing work for his employer, P.I.I. LLC, in connection with the John Jay College Expansion Project. The Dormitory Authority of the State of New York, the owner of the premises, hired multiple prime contractors, including Sea Crest Construction Corp., for general contracting services, and Owen for miscellaneous iron work. Owen subcontracted the iron work to Hillside Ironworks, which then hired plaintiff’s employer, P.I.I., to provide the actual labor for the work. The Court held that the Labor Law §240 cause of action should be dismissed for several reasons. First, it found that plaintiff’s own negligence was the sole proximate cause of his accident. It also found §240(1) was not applicable because plaintiff’s fall from the side of a utility truck while loading a ladder onto it was not an elevation-related risk. Additionally, the Court found the plaintiff failed to establish that the circumstances at the time of his accident warranted the protection of the type of safety equipment enumerated in the statute. Finally, the Court held that §240(1) was not applicable because a gravity-related hazard was not created when another ladder that had already been loaded and bungee-corded to the truck slid horizontally and struck the plaintiff in his chest after he untied the bungee cord. The Court dismissed plaintiff’s Labor Law §241(6) claim because the Industrial Code Rule relied on by him, 12 NYCRR 23-1.7(e) (“Tripping and other hazards”), was not applicable because his accident did not involve a trip. The Court also held that Labor Law §241(6) was inapplicable because plaintiff was not engaged in an enumerated activity inasmuch as he was merely loading ladders onto a truck to deliver them to another job site. Plaintiff’s common law negligence and Labor Law §200 claims were dismissed against the owner and construction manager because they did not supervise or control the plaintiff’s loading of the ladders onto the truck and did not have actual or constructive notice of a debris condition which plaintiff claimed caused the accident. The Court also held that the debris condition did not cause the accident. In addition, all claims for contractual indemnification, common law indemnification, contribution and breach of contract to procure insurance against Owen were dismissed.

Guido v. The Dormitory Auth. of the State of N.Y., Index No. 113126/10 (N.Y. Co. Sup. Ct., Jan. 20, 2015)

Court Dismisses Negligence Action Against Defendants

In a decision dated December 3, 2014, Justice Sidney A. Strauss granted the summary judgment motion of Skanska Koch, Inc. and Koch Skanska, Inc. dismissing the plaintiff’s complaint against them sounding in common law negligence. The plaintiff sought damages for personal injuries sustained when the metal railing of an access platform adjacent to an office trailer collapsed as he was leaning on it causing him to fall. The trailer had been placed at the site as part of a project that Skanska Koch, Inc. performed at the site. When the project was completed, the trailer had been donated to the New York City Parks & Recreation Department on April 1, 2010, more than a month prior to the accident. In dismissing the complaint, the Court found that neither Skanska entity had notice or knowledge of the alleged defective condition, retained control over the premises nor had a contractual duty to maintain and repair the premises. Thus, neither entity could be found liable for it.

Brown v. Skanska Koch, et al., Index No. 6462/2012 (Queens Co. Sup. Ct., Dec. 3, 2014)

We are pleased to announce that Kenneth J. Gormley has joined the Firm as a Partner.

Kenneth’s attorney page.

Stephen M. Cohen and Thomas J. Hall lectured at a seminar for Kiska Construction, Inc. entitled “Issues Involved In Construction Site Accident Investigation,” in New York, New York.

We are pleased to welcome our newest valued client, Kiska Construction Inc.

Please see our entire client list.

First Department Reverses Lower Court Decision Granting Plaintiff Leave To Serve Late Notices Of Claim And Dismisses Complaint

In a decision dated October 21, 2014, the Appellate Division, First Department, unanimously reversed Justice Geoffrey Wright’s decision dated May 16, 2013, which granted plaintiff leave to serve late notices of claim upon the defendants, Metropolitan Transportation Authority and the City of New York.  The defendants established that the grant of leave by the lower court was an improvident exercise of discretion by setting forth evidence that plaintiff failed to proffer a reasonable excuse for the delay, failed to demonstrate that defendants acquired actual notice of the essential facts constituting the claim within 90 days after it arose or a reasonable time thereafter and also failed to demonstrate that defendants were not prejudiced as a result.  In addition to reversing the grant of leave, the First Department also dismissed plaintiff’s related action alleging violations of the Labor Law and common law negligence.

Strohmeier v. Metropolitan Transportation Authority, et.al., 121 A.D.3d 548, 993 N.Y.S.2d 888 (1st Dep’t 2014)

Court Declares GL and Excess Insurers for Bankrupt Subcontractor Must Defend and Indemnify General Contractor in Labor Law Personal Injury Action

In a decision dated October 3, 2014, Justice Debra A. James granted the summary judgment motion of our client CCA Civil-Halmar International, LLC, declaring that subcontractor Mimosa Construction Inc.’s general liability (Endurance American Insurance Company) and excess (Admiral Insurance Company) carriers must defend and indemnify CCA Civil-Halmar International, LLC in a personal injury action brought by an employee of Mimosa. The injured allegedly fell from a bucket while working as a bridge painter. The bucket was permanently attached to a van which was parked under a bridge pier. The bucket’s lockable hinged pivot allegedly gave way, causing him to fall. Endurance, Mimosa’s GL carrier, disclaimed, relying on the auto exclusion in its policy issued to Mimosa. Allstate, Mimosa’s auto liability carrier, also disclaimed coverage, asserting that the van was not a “covered auto”. Admiral, the excess insurer, took the position that if there was no coverage under either primary policy, it owed no coverage.

CCA sought a declaration that one or both carriers must defend and indemnify it as an additional insured under Mimosa’s policies and that Admiral had a duty to indemnify excess of whichever primary policy applies. The Court found that CCA was an additional insured on all three of Mimosa’s policies, the worker’s injuries arose out of Mimosa’s work, and the bucket from which plaintiff fell was “mobile equipment” under the Endurance policy. Relying on Progressive Cas. Ins. Co. v. Yodice, 276 A.D.2d 540, 714 N.Y.S.2d 715 (2d Dep’t 2000), the Court found that the plaintiff’s injuries were not caused by the “use” of an automobile, but by the plaintiff’s “operation” of the bucket. Consequently, the Court held that Endurance, as the general liability insurer, must defend and indemnify CCA in the underlying personal injury action. The Court also held that Admiral is obligated to indemnify CCA excess of the Endurance policy.

CCA Civil-Halmar Int’l v. Allstate Ins. Co. et al., Index No. 107476/2011 (N.Y. Co. Sup. Ct., Oct. 3, 2014)

Stephen M. Cohen and Thomas J. Hall lectured at a seminar for E-J Electric Installation Co. entitled “Managing Safety & Accidents,” in New York, New York on 7/30, 8/28 and 9/23.