Firm News

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.

Court Dismisses Complaint and Co-Defendant’s Cross-Claim for Contractual Indemnification Against Defendant Snow Removal Contractor

In a decision dated May 15, 2012, Justice Michele M. Woodard dismissed the plaintiff pedestrian’s complaint against the defendant snow removal contractor because it did not owe the plaintiff, who slipped and fell on ice, a duty of care and did not create or exacerbate the alleged ice condition in the roadway in front of co-defendant property owner’s premises. In addition, because there was no evidence that the snow removal contractor was negligent in its snow removal, the Court dismissed the property owner’s cross-claim for contractual indemnification as against the snow removal contractor.

Spellman v. AAA Maintenance, LLC, et al., Index No. 2785/10 (Nassau Co. Sup. Ct., May 15, 2012)

Court Dismisses Common Law Negligence and Labor Law §§200 and 240(1) Claims Against Defendant Municipality and Dismisses All Claims Against Two Municipal Agencies

In a decision dated May 21, 2012, Justice Thomas E. Walsh II dismissed those portions of the plaintiff’s complaint against a defendant municipality and project owner sounding in common law negligence and violations of Labor Law §§200 and 240(1). The construction worker plaintiff, age 52 at the time of the accident, alleged that he sustained personal injuries on April 22, 2008, while working in a roadway trench in Orangetown, New York. The plaintiff alleged that on that date, his shovel was contacted by a fallen piece of blacktop, causing bodily injury. The Court granted those portions of the defendant municipality’s summary judgment motion that addressed the plaintiff’s causes of action for common law negligence and pursuant to Labor Law §§200 and 240(1). In addition, the court dismissed outright the entirety of the plaintiff’s claims against two municipal agency defendants that did not own or supervise the subject project, or have notice of the defective condition.

Van Horn v. Town of Orangetown, Index No.: 1157/09 (Rockland Co. Sup. Ct., May 21, 2012)

Court Grants “Labor Law” Defendants Summary Judgment Dismissing Plaintiff’s Complaint

In a decision dated May 2, 2012, Justice David B. Vaughan granted defendants’ Perkan Concrete Corp., the New York City School Construction Authority, the City of New York and the Board of Education of the City of New York’s motion for summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violations of Labor Law §§200, 240(1), 241(6). The construction worker plaintiff, age 56 at the time of the accident, alleged that he sustained personal injuries on November 14, 2007, while working on the sidewalk abutting Public School 329 in Brooklyn, New York. On that date, his leg was contacted by a Bobcat vehicle being operated by a co-worker. The Court granted in its entirety the defendants’ summary judgment motion seeking dismissal of all Labor Law and common law negligence claims. Of particular note was the Court’s conclusion, inherent in its dismissal of the case, that none of the plaintiff’s enumerated provisions of the Industrial Code were applicable, were violated or were substantial factors in the happening of the accident.

Gonzalez v. Perkan Concrete Corp., Index No.: 24209/08 (Kings Co. Sup. Ct., May 2, 2012)

Court Grants Defendant’s Motion for Summary Judgment Dismissing Plaintiff’s Causes of Action for Common Law Negligence and Violations of Labor Law §§200, 240(1) and 241(6)

In a decision dated April 18, 2012, Justice Roy S. Mahon granted defendant Eastport Home & Land Company’s motion for summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violations of Labor Law §§200, 240(1), 241(6). This action arises out of the personal injuries allegedly sustained by the plaintiff on March 3, 2005, at approximately 2:30 p.m., while he was working as a prefabricated stair installer. The plaintiff and a co-worker were carrying a set of prefabricated stairs to one of the condominium units being constructed at a condominium complex under development. The plaintiff was walking backwards when he allegedly tripped over a PVC pipe that was buried in the ground. Regarding the common law negligence and Labor Law §200 causes of action, the Court determined that this case involved the condition of the premises so the plaintiff was required to prove that the defendant had either created the dangerous condition (i.e. an exposed piece of buried PVC pipe) or had actual or constructive notice of it. The Court determined that the defendant established that it did not create the dangerous condition and further that it did not have notice, actual or constructive, of the specific condition that injured the plaintiff. According to the Court, the plaintiff was unable to refute the defendant’s arguments with proof in admissible form. The Court also dismissed the plaintiff’s Labor Law §240(1) cause of action because the plaintiff’s accident did not involve an elevation-related risk or the effects of gravity. Regarding the plaintiff’s Labor Law §241(6) cause of action, the Court determined that none of the Industrial Code Rules cited by the plaintiff were supported by the record. In light of the foregoing, the Court granted the defendant’s motions for summary judgment and dismissed the plaintiff’s complaint in its entirety.

McCullough v. L.P. Stair & Rail, Inc. et al., Index No.: 16458/07 (Nassau Co. Sup. Ct., April 18, 2012)

Stephen M. Cohen Wins Defense Verdict in Labor Law Case.

The claimant, a 44-year-old Union Local 806 bridge painter/sandblaster employed by CCA Civil/Halmar subcontractor Mimosa Construction, Inc., claims that he was injured on September 26, 2009, at a construction yard underneath the Alexander Hamilton Bridge in Bronx, New York.  He alleges that while trying to manually lift heavy steel tubes, he tripped/slipped on debris (an empty water bottle) on the bed of the truck he was standing on, causing the steel he was holding to hit his elbow.  He then fell onto the bed of the truck. The claimant brought suit against the State of New York and the New York State Department of Transportation in the Court of Claims alleging common law negligence and violations of Labor Law §§200, 240(1) and 241(6).  As a result of the accident, the claimant allegedly sustained serious personal injuries and never returned to work. Following a bench trial before Hon. Faviola A. Soto, the State and DOT successfully obtained a defense verdict thereby dismissing the claimant’s case.

Rocha v. State of New York et al., Index No. 117724 (N.Y. Ct. Claims 2012)