Firm News

Thomas J. Hall Wins Verdict In Favor of Defendants / Second Third-Party Plaintiffs on Contractual Contribution / Indemnity Claims in Labor Law Case.

The plaintiff, a plumber employed by second third-party defendant, Pace Plumbing Corp., alleges that he was involved in a construction accident on April 17, 2003, at a building owned by defendant Rockefeller Center North, Inc. and leased by defendant Time, Inc. The plaintiff sued Rockefeller / Time, who in turn impleaded Pace asserting a contractual contribution / indemnity claim based upon a one page indemnification agreement that was contained within a subcontract for plumbing demolition work between Pace and third-party defendant, McCann Inc.  After the completion of discovery, Rockefeller / Time and Pace negotiated a partial settlement with the plaintiff whereby they agreed to pay a sum certain to settle the plaintiff’s claims and to proceed to trial on Rockefeller / Time’s second-third party claims for contractual contribution / indemnity against Pace. At trial, Rockefeller / Time successfully obtained a verdict in its favor on the contractual contribution / indemnity claims against Pace.

Picano v. Rockefeller Center North, Inc. et al., Index No. 115832/04 (N.Y. Co. Sup. Ct. 2012)

First Department Affirms Dismissal of Plaintiff’s Complaint against Defendant City of New York

In a decision entered March 13, 2012, the Appellate Division, First Department unanimously affirmed the lower court’s decision granting defendant, the City of New York, summary judgment dismissing the plaintiff’s complaint, including those causes of action for common law negligence and pursuant to Labor Law §§200 and 241(6).  The plaintiff, an ironworker employed by a non-party contractor, was injured while performing rivet removal work on the Williamsburg Bridge when he stepped on a loose rivet stem and fell. The First Department held that the common law negligence and Labor Law §200 causes of action were properly dismissed by the lower Court because there was no evidence that the City created the condition and it was not responsible for nor did it have any input in setting up the work site. Moreover, the plaintiff testified that he did not notice any debris on the platform where he fell before the accident and that proper procedures were in place to clear the platform of any debris during the day. Additionally, the City did not receive any prior complaints regarding any tripping hazards. The Appellate Division also held that the lower Court properly dismissed plaintiff’s Labor Law §241(6) claim, which was predicated on an alleged violation of Industrial Code Rule 23-1.7(e). According to the First Department, even if the area the plaintiff traversed could be deemed a “passageway” within the meaning of Rule 23-1.7(e), the plaintiff testified that he tripped on the rivet after he entered the common, open work area. Rule 23-1.7(e) also did not apply because the evidence showed that the subject rivet stem constituted an integral part of the plaintiff’s work. The City’s evidence that the plaintiff was engaged in rivet removal, such work was ongoing in various parts of the bridge, and all falling parts could not be caught while the plaintiff and his coworkers were actively engaged in the removal work, established that the rivet stem resulted from the work plaintiff was performing.  The plaintiff’s argument that the rivet did not originate from the work he himself was performing was found by the Appellate Division to be unavailing, as rivets left by the plaintiff’s coworkers, who were performing the same rivet removal work, could still be deemed an integral part of the work.

Zieris v. City of New York, 93 A.D.3d 479, 940 N.Y.S.2d 72 (1st Dep’t 2012)

We are pleased to announce that Sandro Battaglia has joined the Firm as Of Counsel

Court Grants Defendant Skanska USA Inc. Summary Judgment Dismissing Plaintiff’s Complaint

In a decision dated January 9, 2012, Justice Julia I. Rodriguez granted defendant Skanska USA Inc.’s (“Skanska”) motion for summary judgment dismissing the plaintiff’s complaint sounding in common law negligence as against Skanska.  The plaintiff alleged that he sustained personal injuries on March 22, 2007, while walking in the crosswalk at the intersection of West 161st Street and Gerard Avenue, Bronx, New York.  The Court determined that Skanska established by testimony and documentary evidence that it did not perform work at the accident site. While the plaintiff had submitted testimony that Skanska was working in the area of the accident, he offered no other form of evidence to substantiate that claim. Further, the plaintiff’s attorney’s affirmation indicating that the documents presented by Skanska provided proof of the existence of work being performed in the subject intersection was, upon the Court’s review, without merit. As such, the Court granted summary judgment to Skanska on the issue of liability and dismissed the plaintiff’s complaint as against it.

Amasike v. City of New York et al., Index No.: 305167/08 (Bronx Co. Sup. Ct., January 9, 2012)

We are pleased to announce that Todd Paradeis has become a Partner of the firm.

Complaint Dismissed Against Defendant Joint Venturer Because Plaintiff’s Claims Are Barred By Exclusivity Provisions of Workers’ Compensation Law

In a decision dated December 12, 2011, Justice Mark Friedlander granted defendant Tully Construction Co., Inc.’s (“Tully”) pre-answer motion for summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violation of Labor Law §241(6) as against Tully. The plaintiff alleged that he sustained personal injuries on May 20, 2009, while working at a construction project at the Croton Water Filtration Plant in Bronx, New York. At the time of the accident, the plaintiff was employed by Skanska USA Civil Northeast, Inc. formerly known as Slattery Skanska Inc. (“Skanska”). Skanska had entered into a joint venture agreement, dated September 6, 2006, with Gottlieb Skanska, Inc. (now known as Skanska Mechanical and Structural Inc.) and Tully, forming the Skanska/Tully Joint Venture (“Joint Venture”), for the sole purpose of submitting a bid for, and obtaining a contract for the performance of work for the New York City Department of Environmental Protection project at the Croton Water Filtration Plant. Following the plaintiff’s accident, he filed for and accepted workers’ compensation benefits from the Joint Venture. The Court held that the documentation submitted by Tully unequivocally established that it was a part of the Joint Venture pertaining to the construction at the Croton Water Filtration Plant. The Court further cited to Appellate Division, First Department precedent holding that: “Where there is one or more employer in a joint venture, an employee working for one employer is considered an employee of the other employers in the joint venture.” Fallone v. Misericordia Hosp., 23 A.D.2d 222, 289 (1st Dep’t 1965). In light of the foregoing law and facts, the Court held that plaintiff’s complaint against defendant Tully was barred by the exclusivity provisions of the Workers’ Compensation law.

Gomes v. Tully Construction Co., Inc., Index No.: 303223/11 (Bronx Co. Sup. Ct., December 12, 2011)

John V. Fabiani, Jr. lectured at the New York State Bar Association seminar entitled “Construction Site Accidents– Direct and Cross Examination of Plaintiff–2011 Update,” in New York City.

Appellate Division Dismisses Action Against City Defendants and Holds that Co-Defendant Con Edison Is Exclusively Responsible for Maintaining Portion of Sidewalk Located Within 12 Inches of Con Edison’s Grates Even Though Grates Were Located on Driveway Abutting City’s School

In a decision dated November 1, 2011, the Appellate Division, First Department reversed the decision of the Supreme Court and granted summary judgment in favor of all City defendants leaving Consolidated Edison (“Con Edison”) the sole defendant.  The plaintiff brought an action against Con Edison, the City of New York and other defendants for injuries allegedly sustained when he fell on a sidewalk on which a metal grate owned by Con Edison was situated.  Although the grate was situated on a driveway abutting the City’s school, and Con Edison and the plaintiff argued that the City put it to special use, the First Department held that the City defendants were entitled to judgment as a matter of law because the evidence established that they did not have the ability to exercise control over the sidewalk defect allegedly involved. In reaching its decision, the Appellate Division relied on the facts that Con Edison owned the grate in question and, pursuant to 34 RCNY 2-07(b)(1), (2) it had an exclusive duty to maintain it, as well as the area extending 12 inches around it.

Lewis v. City of New York et al., 89 A.D.3d 410 (1st Dep’t 2011)

Court Dismisses Plaintiff’s Complaint Sounding in Common Law Negligence Against Defendants

In a decision dated September 26, 2011, Justice Debra A. James granted the defendants City of New York (“the City”) and Skanska USA Civil Northeast Inc.’s (“Skanska”) motion for summary judgment dismissing the plaintiff’s complaint sounding in common law negligence against them.  The Metropolitan Transportation Authority awarded Skanska the contract for a project that required the closure and removal of a certain portion of the sidewalk on the east side of Church Street in New York City and the rerouting of pedestrians into a temporary, barricaded walkway. The plaintiff allegedly tripped on a manhole cover while walking in the temporary walkway.  The evidence established that the manhole cover was owned by third-party defendant, Empire City Subway Company.  The Supreme Court held that because neither the City nor Skanska owned the manhole cover and because the manhole cover was not within the construction site, the City and Skanska could not be held liable to the plaintiff for her alleged injures. Alternatively, the plaintiff had argued that the City and Skanska created the alleged condition by placing a temporary walkway over the allegedly broken and defective roadway in the area of the manhole cover. However, the Supreme Court found that the plaintiff did not meet her burden of proving that the City or Skanska performed any work on the roadway in the vicinity of the manhole cover at any time immediately preceding the date of the accident and/or otherwise caused the alleged condition.

Barrett v. City of New York et al., Index No.: 405347/07 (N.Y. Co. Sup. Ct., September 20, 2011)

Appellate Division Dismisses Plaintiff’s Causes of Action Against the City for Common Law Negligence and Pursuant to Labor Law §§200 & 241(6)

In a decision dated August 23, 2011, the Second Department reversed the decision of the Supreme Court insofar as it denied the City’s motion for summary judgment seeking dismissal of the plaintiff’s causes of action for common law negligence and pursuant to Labor Law §§200 and 241(6).  The Supreme Court had previously dismissed the plaintiff’s cause of action pursuant to Labor Law §240(1) so it was not an issue on appeal.  The plaintiff, a union steward employed by a general contractor at the Hunts Point Water Pollution Control Plant, was allegedly injured when he stepped on a wooden ramp while alighting from his truck.  According to the plaintiff, the ramp separated underneath his feet, causing him to fall to the ground.  The Appellate Division held that the plaintiff’s causes of action for common law negligence and pursuant to Labor Law §200 should have been dismissed because the defendants did not supervise, direct or control the plaintiff’s work or have notice of the condition. The plaintiff’s own testimony established that the condition was not visible and apparent.  The Court further held that the plaintiff’s the Labor Law §241(6) claim should have been dismissed because it was predicated upon an alleged violation of Industrial Code Rule 23-1.22(b)(2) which was inapplicable to the facts of the case.

Gray v. City of New York et al., 87 A.D.3d 679 (2d Dep’t 2011)