Firm News

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.

Court Dismisses Negligence Action Against Defendants

In a decision dated August 15, 2014, Justice Eileen Rakower granted the summary judgment motions of Skanska and the City of New York dismissing the plaintiff’s complaint against them sounding in common law negligence. The plaintiff sought damages for personal injuries sustained when she allegedly fell while walking in the roadway on Dey Street between Church Street and Broadway. In dismissing the complaint, the Court found that Skanska neither created the alleged defect nor owed plaintiff any duty to remedy it. With respect to the City, the Court held that it was not on prior written notice of the defect, and thus could not be found liable for it.

Gelbard v. City of New York, et al., Index No. 105251/07 (N.Y. Co. Sup. Ct., Aug. 15, 2014)

We are pleased to welcome our newest valued client, Cupertino Electric Inc.

Stephen M. Cohen and Thomas J. Hall lectured at an accident investigation seminar for The Durst Organization in New York City.

We are pleased to announce that Marc Mahoney has become a Partner of the firm.

Please see Marcs attorney page.

First Department Affirms Supreme Court’s Dismissal of Plaintiff’s Causes of Action for Common Law Negligence and Violations of Labor Law §§200 and 241(6)

In a decision dated January 28, 2014, the Appellate Division, First Department unanimously affirmed the decision of Hon. Louis B. York, entered on October 4, 2012, which granted defendants One Bryant Park LLC, One Bryant Park Development Partners LLC, The Durst Manager LLC and Tishman Construction Corporation of New York 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, claims that he sustained injuries on September 2, 2008, when his foot slipped on an unsecured piece of masonite while exiting an elevator at a construction site located at 1111 Avenue of the Americas, New York, New York. The masonite had been placed over the newly installed vinyl laminate flooring to protect it from foot and wheel traffic during the remainder of the construction process. 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. On appeal, the First Department held that the defendants established their entitlement to summary judgment on the common law negligence and Labor Law §200 claims because the defendants established that they neither created the allegedly dangerous condition nor had notice of it. The defendants also did not have the authority to control the activity bringing about the plaintiff’s injury to enable them to avoid or correct an unsafe condition. Moreover, they did not have responsibility for maintenance of the masonite on the floor where the plaintiff’s accident occurred because that level of the building had been turned over to a nonparty entity, which continued construction on that floor level. Regarding the Labor Law §241(6) cause of action, the First Department held there was no evidence that the 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 12 N.Y.C.R.R. 23-1.7(d). Additionally, 12 N.Y.C.R.R. 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.

Stier v. One Bryan Park LLC et al., 113 A.D.3d 551, 979 N.Y.S.2d 65 (1st Dep’t 2014)