Firm News

Federal Judge Dismisses Plaintiff’s Complaint With Prejudice

In a decision dated November 28, 2012, United States District Judge Sandra L. Townes granted the motion of the City of New York, the New York City School Construction Authority (“SCA”), and other municipal defendants for an order dismissing the complaint for the plaintiff’s repeated failure to comply with court discovery orders. The pro se plaintiff, John DePietro, was seeking damages for the allegedly wrongful demolition of several structures on his property in December 2007. The plaintiff also claimed that the SCA’s installation of a drainage system in connection with the construction of a new public school across the street from his property in the late 1990s has caused, and continues to cause excessive water run-off from the school property onto his own property, resulting in continuing damage to his property. The defendants’ motion outlined the plaintiff’s pattern of failing to provide proper responses to discovery demands, and the plaintiff’s noncompliance with multiple orders of the Court directing the plaintiff to provide such responses. Additionally, although the plaintiff had previously been represented by counsel, on July 14, 2011 the plaintiff’s attorney had received leave to withdraw on the grounds of, inter alia, “lack of communication” and “breakdown in communications.” The Court directed the plaintiff to retain new counsel by September 14, 2011, but the plaintiff did not do so, electing to proceed pro se. In response to the defendants’ motion, the plaintiff admitted that it had been a mistake to proceed without an attorney, and requested additional time to retain new counsel. The Court noted that Federal Rule of Civil Procedure 41(b) authorizes the Court to dismiss a complaint “for failure of the plaintiff to prosecute or to comply with … any order of court,” and proceeded to consider the relevant factors for dismissal pursuant to that rule. The Court found that the plaintiff’s noncompliance with discovery obligations was of significant duration, and it noted that it had previously warned the plaintiff that his failure to comply with the Court’s orders raised the possibility of dismissal for failure to prosecute. The Court accepted the defendants’ argument that the plaintiff’s unreasonable delay had prejudiced the defense of the case, as it became increasingly difficult to locate necessary witnesses, and to locate and preserve relevant documents. The Court also noted that the defendants had incurred the costs of attending multiple court conferences in a case that had failed to progress in any meaningful way due to the plaintiff’s noncompliance with discovery orders. The Court rejected the plaintiff’s request for additional time to retain new counsel, noting that the plaintiff’s history of delays dated back to when the plaintiff was represented by counsel. Accordingly, the Court granted defendants’ motion, and dismissed the plaintiff’s complaint with prejudice.

DePietro v. The City of New York, Index No.: 09-cv-932 (E.D.N.Y. November 28, 2012)

John V. Fabiani, Jr. lectured at a New York State Bar Association seminar entitled “Construction Site Accidents: The Law and the Trial – 2012,” in New York, New York.

Court Grants Defendant Summary Judgment Dismissing Plaintiff’s Complaint and Denies Plaintiff’s Cross-Motion to Add New Party Via the Relation Back Doctrine

In a decision dated November 15, 2012, Justice Saliann Scarpulla granted defendant Skanska Mechanical and Structural summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and trespass. The plaintiff, Verizon New York Inc., alleged that on May 28, 2008, the defendant, Skanska, damaged 2,400 pairs of Verizon’s underground telecommunication cables while drilling and/or excavating at/or near a manhole that was being rebuilt, at the northeast corner of Church Street and Dey Street, in New York, New York. Verizon sought to recover for the alleged damage to its facilities. The Court determined that the defendant was entitled to summary judgment dismissing the plaintiff’s claims because the defendant proffered sufficient evidence that it was working at a different location on the date of the accident, did not perform any underground excavation work, did not encounter any of plaintiff’s cables while working on the project and did not come into contact with plaintiff’s cables. Based on this evidence, the burden shifted to Verizon to demonstrate a triable issue of fact. As Verizon did not oppose the motion, they failed to raise any triable issues of fact, and the motion was granted. With regard to plaintiff’s cross-motion seeking to amend the caption to substitute Skanska USA Civil Northeast for Skanska Mechanical and Structural as the defendant in this action, the court found that Verizon did not satisfy the three conditions necessary to do so beyond the statute of limitations which had expired on May 28, 2011, pursuant to the relation back doctrine. To benefit from the relation back doctrine, the plaintiff must prove that the claims against both the new and old defendants arose out of the same transaction or occurrence, the new defendant must have been united in interest with the original defendant, and the new defendant must have known or should have known that, but for the plaintiff’s mistake about the proper identity of the party, the action would have been brought against it. The court found that the plaintiff did not show that the aforementioned Skanska entities were united in interest such that vicarious liability exists between the two entities, and the plaintiff’s cross-motion was therefore denied.

Verizon New York, Inc. v. Skanska Mechanical and Structural Inc., Index No.: 104864/10 (N.Y. Co. Sup. Ct., November 15, 2012)

Court Grants Defendants Summary Judgment Dismissing Plaintiff’s Common Law Negligence and Labor Law §§200 and 240(1) Claims and Granting Contractual Indemnification Against Construction Manager and Subcontractor

In a decision dated September 28, 2012, Justice Joan M. Kenney granted defendants, the City of New York (“City”) and Brooklyn Navy Yard Development Corporation (“BNYDC”), summary judgment dismissing the plaintiff’s common law negligence and Labor Law §§200 and 240(1) claims.  The Court also granted the City and BNYDC summary judgment on their contractual indemnification claims against construction manager TDX and subcontractor Glassolutions.  The City and BNYDC contracted with TDX for construction management services at the Brooklyn Navy Yard. TDX contracted with Calcedo for general construction services, who in turn subcontracted with Glassolutions for window installation.  The plaintiff, an employee of Glassolutions, claims that he was injured when a crate of windows allegedly fell and hit him.  The incident occurred after a telehandler machine lifted the crate from the ground outside up and through a window opening in the building.  The crate was sitting on the forks of the lift when it toppled over as the plaintiff and others were unloading it.  The Court dismissed the plaintiff’s common law negligence and Labor Law §200 causes of action, finding that the City and BNYDC did not supervise, direct or control his work.  The Court dismissed the plaintiff’s Labor Law §240(1) cause of action finding that the falling of the crate was not an elevation-related hazard, but rather, a usual and ordinary danger of a construction site.  With respect to the claim for contractual indemnification, the Court found that the indemnity obligations of TDX and Glassolutions had been triggered.

Dreher v. The City of New York et al., Index No.: 112104/08 (New York Co. Sup. Ct., September 28, 2012)

Court Grants Defendants Summary Judgment Dismissing Plaintiff’s Complaint in its Entirety

In a decision dated September 28, 2012, Justice Louis B. York 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. The Court determined that the defendants were entitled to summary judgment dismissing the plaintiff’s common law negligence and Labor Law §200 claims because the defendants did not supervise, direct or control the plaintiff’s work. Regarding the plaintiff’s Labor Law §241(6) claim, the Court determined that the Industrial Code Rules cited by the plaintiff did not apply to the facts of the case. Of particular note, the Court held that the masonite was not a foreign substance for the purposes of Industrial Code Rule 23-1.7(d), which pertains to slipping hazards, because it was intentionally placed on the floor and there was no indication that it was not supposed to be there.

Stier v One Bryant Park LLC, Index No.: 103134/09 (N.Y. Co. Sup. Ct., September 28, 2012)

Second Department Reverses Lower Court Decision Denying Third-Party Defendant’s Motion for Summary Judgment Seeking Dismissal of Claim for Breach of Contract for Failure to Procure Insurance

In a decision entered on October 3, 2012, the Appellate Division, Second Department, reversed an order of the Supreme Court, Queens County (Satterfield, J.), dated October 25, 2010, which denied that branch of third-party defendant LTC Electric, Inc.’s motion for summary judgment seeking dismissal of the fourth cause of action in the third-party complaint, which alleged breach of contract for LTC’s failure to procure insurance naming the third-party plaintiffs as additional insureds. The Second Department held that LTC established that its failure to procure insurance did not constitute a breach of contract by submitting, inter alia, the written agreement between it and the third-party plaintiffs, which did not require LTC to procure said insurance. In addition, because the written agreement between LTC and the third-party plaintiffs was complete and enforceable according to its terms, the Supreme Court should not have considered the extrinsic evidence offered by the third-party plaintiffs in opposition to LTC’s motion.

Zaidi v New York Building Contractors, Ltd., 99 A.D.3d 705, 951 N.Y.S.2d 573 (2d Dep’t 2012)

Court Grants Defendants Summary Judgment Dismissing Plaintiff’s Complaint and for Contractual Indemnification Against Subcontractor

In a decision dated June 27, 2012, Justice Julia I. Rodriguez granted defendants the City of New York, New York City Department of Environmental Protection and Yonkers Contracting Company, Inc. summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violations of Labor Law §§200, 240(1), 241(6). The Court also granted the defendants summary judgment on their third-party claims for contractual indemnification against subcontractor, J. Blanco Associates, Inc. The City contracted with Yonkers to perform the construction work at the Hunts Point Water Pollution Control Plant. Yonkers subcontracted with Blanco to engineer, fabricate and erect a pipe trestle for the Plant. The fabrication and installation of this system was then subcontracted by Blanco to Industrial Threaded Products who then subcontracted the installation work to Delta Installations, Inc. The plaintiff, an employee of Delta, claims that on August 6, 2004, he was walking to a company truck when he slipped, tripped and fell in an uncovered hole containing wood debris and rocks. The hole was approximately 12 to 16 inches deep. The Court dismissed the plaintiff’s Labor Law §240(1) cause of action because his accident involved a slip, trip and fall and his “duties did not implicate a gravity or elevation differential task”. Regarding the plaintiff’s Labor Law §241(6) cause of action, the Court determined that the Industrial Code Rules cited by the plaintiff were either unrelated to the work he was performing or too general. Regarding the common law negligence and Labor Law §200 causes of action, the Court determined that the defendants did not supervise, direct or control the plaintiff’s work or have notice of any dangerous condition which injured the plaintiff. With respect to the claim for contractual indemnification, in the subcontract agreement, Blanco agreed to indemnify the defendants for all claims and costs associated with the work under the subcontract including any part of the work that is further subcontracted. In light of the foregoing, the Court granted the defendants’ motion for summary judgment dismissing the plaintiff’s complaint and awarding them contractual indemnification against Blanco.

Cerverizzo v. The City of New York et al., Index No.: 15301/05 (Bronx Co. Sup. Ct., June 27, 2012)

John V. Fabiani, Jr. and Stephen M. Cohen lectured at a seminar for Ace Group entitled “The Art of Effective Risk Transfer,” in Jersey City, New Jersey.

John V. Fabiani, Jr. and Stephen M. Cohen lectured at a seminar for Travelers Insurance Company entitled “Use of Social Media In Litigation,” in Windsor, Connecticut.

John V. Fabiani, Jr., Thomas J. Hall and Christopher R. Toppo lectured at a seminar for various insurance carriers entitled “New York Labor Law §§200, 240(1) & 241(6): A Primer,” in Alpharetta, Georgia.