Firm News

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

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.

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

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)

Court Denies Summary Judgment to Plaintiff Motorist Who Struck Excavator While It Was Being Moved In Roadway

In a decision dated March 13, 2023, the Hon. Ben R. Barbato of Bronx County Supreme Court denied the plaintiff’s motion for summary judgment on liability in a motor vehicle action.  The plaintiff was the operator of a vehicle involved in a collision with an excavator owned by our client, Skanska/Walsh Joint Venture.  The collision occurred at 4:00 a.m., after the plaintiff’s vehicle rounded a bend in the road and encountered the excavator making a turn into a driveway entrance at LaGuardia Airport from a designated left turn lane.  The plaintiff contends that the excavator initiated the turn when her vehicle was one car length away and the right front passenger side of her vehicle impacted the right front passenger side of the excavator; the excavator operator, William Webster, did not observe the plaintiff’s vehicle at any time prior to the collision and, due to the size and weight of the excavator, he was not alerted to the collision when it occurred.  The plaintiff argued that the excavator failed to yield the right-of-way and caused the collision by turning in front of her vehicle, in violation of Vehicle and Traffic Law §§1141 and 1163(a).  In its opposition to plaintiff’s motion, Skanska challenged the plaintiff’s inconsistent testimony as to how the collision occurred.  Skanska also submitted the affidavit of a motor vehicle accident reconstruction and traffic safety expert who concluded that the plaintiff’s account of how the collision occurred was physically impossible (e.g., the excavator would have exceeded its maximum acceleration rate to reach the point of impact) and the physical evidence supported the conclusion that the impact occurred when the front passenger side of the plaintiff’s vehicle struck the rear passenger side of the excavator in a glancing blow after the excavator had essentially completed its left turn.  Judge Barbato held that the plaintiff failed to satisfy her initial summary judgment burden because her own testimony raised issues of fact as to the circumstances of this incident (e.g., she could not recall where the collision occurred in relation to the bend in the road, the speed limit or whether she had to slow her vehicle prior to the collision).  The Court noted that, to the extent that the plaintiff alleged that the excavator had been stopped in the middle of the roadway when she first encountered it, there was an issue of fact whether she violated her duty of care to avoid the collision. The Court also admonished plaintiff’s counsel for repeatedly interrupting the plaintiff at her deposition in an attempt to rehabilitate the plaintiff’s comments or otherwise clarify the record.

Yorkina Torres-Martinez v. William Webster, et al., Index No. 20291/2021E (Sup. Ct. Bronx Co., Mar. 13, 2023)

On March 15, Thomas J. Hall lectured at a seminar for Travelers entitled “Evaluating and Defending Loss of Earnings Claims by Union Construction Workers” in New York, New York.

Court Dismisses Plaintiff’s Labor Law §200 and Common-Law Negligence Claims as to Defendant Owner and Grants Owner Common-Law Indemnification Against Employer in Case Involving Plaintiff’s Fall from Scaffold

In a decision dated January 6, 2023, the Hon. Mojgan C. Lancman of Queens County Supreme Court granted the motion of our client, defendant/property owner, Waterfront Resort, Inc., for summary judgment dismissing plaintiff’s causes of action pursuant to Labor Law §200 and for common-law negligence. The Court also granted Waterfront’s motion for summary judgment on its third-party claim for common-law indemnification against plaintiff’s employer, Wing Jay Construction, Inc. The plaintiff, while employed by Wing Jay on a project involving the demolition of an existing warehouse and the construction of a residential condominium complex at 109-09 15th Avenue, Queens, New York, allegedly fell from a scaffold and sustained a traumatic brain injury. Regarding the §200 and common-law negligence causes of action, the Court determined that the plaintiff’s accident did not result from any allegedly dangerous or defective condition at the subject premises, but rather, the means and method of the work. Additionally, it was also undisputed that Waterfront had exercised no supervisory control over the manner in which the plaintiff’s work was performed. Regarding the third-party claim for common-law indemnification, the Court found that Waterfront was entitled to indemnification from Wing Jay because Waterfront established that it was not negligent and its liability was purely statutory and vicarious.  

Yun Quan Gao et al. v. Waterfront Resort, Inc. et al., Index No. 707824/2018 (Sup. Ct. Queens Co., Jan. 6, 2023)

First Department Reverses Lower Court and Dismisses Plaintiff’s Labor Law §241(6) Claim In Case Involving Worker Who Struck Neck On Overhead Object

In a decision dated December 6, 2022, the Appellate Division reversed the Order of the Supreme Court, New York County denying summary judgment on the plaintiff’s Labor Law §241(6) claim predicated upon a violation of 12 NYCRR §23-1.7(e)(1) (“sharp projections [in passageways] which could cut or puncture any person shall be removed or covered”) and, upon searching the record, dismissed the Labor Law §241(6) claim against our client, Consolidated Edison Company of New York, Inc. (“ConEd”), which contracted for the work on the premises. 

The plaintiff, a mechanic investigating a reported gas leak at a residential apartment building, was allegedly injured when he exited the boiler room in the basement and as he ascended the topmost of three exterior steps, he struck his neck on a plywood board installed overhead in the doorway to the basement vestibule.  The premises owner had previously installed the plywood board in the top portion of the doorway to conceal the basement opening from the street level after the pipes in the boiler room had been stolen.  In support of its summary judgment motion seeking dismissal of the Labor Law §241(6) claim and in opposition to the plaintiff’s summary judgment motion, ConEd submitted an affidavit from its construction site safety expert who inspected the plywood board and opined that the Industrial Code did not apply and was not violated because the plywood board was not “sharp”; he substantiated his opinion with a photograph of the edge of the board.  The First Department held that the plywood board was not a sharp projection that could cut or puncture and thus, the Industrial Code provision was inapplicable.

Michael Widdecombe v. Consolidated Edison Company of New York, Inc., 211 A.D.3d 450, 180 N.Y.S.3d 95 (1st Dep’t 2022)

On November 9, Stephen M. Cohen and Thomas J. Hall lectured at a seminar for Alliant entitled “Best Practices for Post-Accident Investigation” in Uniondale, New York.

Court Dismisses Plaintiff’s Labor Law §240(1) Claims as to All Defendants in Trip and Fall Accident on a Permanent Staircase at a Construction Site

In a decision dated October 14, 2022, the Hon. Ingrid Joseph of Kings County Supreme Court granted the motion and cross-motion brought by defendants, Update Systems Electrical Contracting Corp. and Liberty Elevator Corporation a/k/a Liberty Elevator of NY, respectively, which sought dismissal of plaintiff’s cause of action pursuant to Labor Law §240(1) as a matter of law because he tripped and fell on a permanent staircase. Our clients, Archstone Builders LLC and Deco Towers Associates, LLC, submitted an affirmation in support of the motions and sought dismissal of the plaintiff’s §240(1) claim as to all defendants. In reaching its decision, the Court held that “[t]he allegations in the complaint assert[ed] a normal usual and ordinary danger[] of construction outside the scope of the protections provided by Labor Law 240.” Additionally, “a permanent staircase is not a safety device defined by Labor Law 240.” In light of the foregoing, the Court dismissed plaintiff’s cause of action pursuant to Labor Law §240(1) as to all defendants as a matter of law.

Dario Xavier Rojas Rivera v. Archstone Builders LLC et al., Index No. 533141/2021 (Sup. Ct. Kings Co., Oct. 14, 2022)

Court Dismisses Plaintiff’s Motor Vehicle Action Against Tractor-Trailer Owner and Driver

In a decision dated July 12, 2022, the Hon. Ulysses B. Everett of Queens County Supreme Court granted the motion for summary judgment dismissing the complaint brought by our clients, Midnight Trucking, LLC (“Midnight Trucking”) and Michael A. Zizzo, the owner and operator of a tractor-trailer, respectively. In this motor vehicle action, the plaintiff alleged that he had stopped his vehicle at a yield sign at the end of an exit ramp and was waiting for traffic to clear when the tractor-trailer, traveling in the lane closest to him, struck the front passenger side door of his vehicle. The plaintiff claimed he did not see the 80-foot-long tractor-trailer before the collision and he could not explain how the collision occurred. The tractor-trailer had three mounted cameras and the video footage contradicted the plaintiff’s account of the accident. In support of the motion, we submitted an affidavit from Mr. Zizzo attesting to the circumstances of the accident and an affidavit from Midnight Trucking’s IT manager authenticating the video footage. We also submitted an affidavit from an engineering and biomechanical expert, who opined that the plaintiff had a clear and unobstructed view of the tractor-trailer at all times prior to the accident. This was based on the majority of the tractor-trailer having been stopped past the yield sign at the time when the plaintiff’s vehicle arrived at the end of the exit ramp. The expert also opined that the collision occurred when the plaintiff’s vehicle moved forward and struck the rear portion of the tractor-trailer.

The Court concluded that the defendants established their prima facie entitlement to summary judgment as a matter of law because the plaintiff entered the tractor-trailer’s lane of travel without yielding to the defendants’ right of way, in violation of Vehicle and Traffic Law §§1142(b) and 1172(b), and the plaintiff’s negligence was the sole proximate cause of the collision. The Court held that the plaintiff did not raise a material issue of fact because his contention that the tractor-trailer sideswiped his vehicle was contradicted by the videographic evidence and the analysis of the defendants’ expert, and the plaintiff failed to prove that the driver of the tractor-trailer could have done anything differently to avoid the collision.

Claudy Hyppolite v. Midnight Trucking, LLC et al., Index No. 715056/2018 (Sup. Ct. Queens Co., July 12, 2022)