Firm News

John V. Fabiani, Jr., Thomas J. Hall and Christopher R. Toppo lectured for Chartis Insurance, Axis Insurance Group, ACE Insurance and Fleming & Hall at a seminar entitled “The Art of Effective Risk Transfer,” in Alpharetta, Georgia.

John V. Fabiani, Jr. and Stephen M. Cohen lectured at a Travelers Insurance Company seminar entitled “Defending Damages On Spinal and TBI Claims,” in Windsor, Connecticut.

Court Grants Defendant City of New York Summary Judgment Dismissing Plaintiff’s Complaint

In a decision dated June 15, 2011, Justice David B. Vaughan granted the defendant City of New York summary judgment dismissing the plaintiff’s complaint which alleged that the City was negligent and violated Labor Law §§200, 240(1) and 241(6). The plaintiff, an ironworker, was allegedly injured while working for his employer at a project located on the lower roadway of the Manhattan Bridge owned by the City. At the time of the accident, the plaintiff was standing on a steel box girder that was being lowered by a mobile crane when a “come-along” failed causing the girder to shake and the come-along’s chain to strike him in the right leg. The court granted the City’s motion for summary judgment dismissing the common law negligence and Labor Law §200 causes of action because the plaintiff’s work was supervised, directed and controlled by his employer and no one else.  The cause of action pursuant to Labor Law §240(1) was dismissed because the plaintiff was not exposed to an elevation-related risk and a violation of the statute was not a proximate cause of his accident. Lastly, the court dismissed the cause of action pursuant to Labor Law §241(6) because the alleged Industrial Code Rules which served as a prerequisite to the §241(6) claim were either too general, inapplicable to the facts of the case, not violated and/or were not the proximate cause of the plaintiff’s accident.

O’Brien v. The City of New York, Index No.: 46072/07 (Kings Co. Sup. Ct., June 15, 2011)

Court Grants Defendant Building Owner Summary Judgment Dismissing Plaintiff’s Complaint

In a decision dated May 31, 2001, Justice May Ann Brigantti-Hughes granted the defendant  building owner (“general contractor”) summary judgment dismissing the plaintiff’s complaint in its entirety. The plaintiff was a security guard who worked at a property located at 744 East 168th Street, Bronx, New York. On the night of November 3, 2003, he was performing a vertical check of the property to ensure that it was secure. While doing so, he allegedly slipped and fell on or near a paper bag on a staircase, which was dripping with oil and creating a slippery condition located between the fifth and sixth floors of the building. The defendant moved for summary judgment alleging that it had no actual or constructive notice of the alleged condition. The court agreed and held that there was simply no evidence in this matter demonstrating the length of time an oily bag was left on the staircase in order to establish that the defendant had constructive notice of this allegedly hazardous condition.

Brown v. The City of New York and Parrocks Associates, Index No.: 7159/05 (Bronx Co. Sup. Ct., May 31, 2011)

Defendant Safety Auditing Services Joint Venture Obtains Voluntary Discontinuance of Plaintiff’s Complaint and All Cross-Claims

The plaintiff claims that he sustained bodily injuries on November 8, 2005, at a construction and renovation project at the Newtown Creek Water Pollution Control Plant.  During the course of his employment with Pegno/Tully Joint Venture, the plaintiff, while carrying a heavy metal doorframe, stepped on an open sewer drain in the basement of the “Grit Building” at the project. Prior to the plaintiff’s accident, Tams/Allied Joint Venture (“Joint Venture”) entered into an agreement with the New York City Department of Environmental Protection (“DEP”) to perform third-party occupational safety auditing services at various DEP projects, including the subject project. The duties of the Joint Venture at the project consisted of randomly visiting the project and physically observing site conditions in the presence of the contractor site safety representative.  If any unsafe work practices or conditions were observed, the Joint Venture recorded the same in a database and discussed the issue with the appropriate DEP and contract management resident engineering staff as well as the contractor’s site safety representative.  The Joint Venture did not have the authority to instruct any of the contractors or subcontractors on the site as to the means and methods of their work; nor did it have the authority to stop any of the contractors or subcontractors from performing their work.  Significantly, it did not have any duty or responsibility to implement safety standards or to provide safety devices. In light of the foregoing, the Joint Venture successfully obtained a voluntary discontinuance of the plaintiff’s complaint alleging that the Joint Venture was negligent and violated Labor Law §§200, 240(1) and 241(6). The cross-claims interposed by the various codefendants were also voluntarily discontinued as against the Joint Venture.

Ingordo v. WDF, Inc. et al., Index No.: 42646/07 (Kings Co. Sup. Ct.)

Court Grants Defendants’ Motion for Summary Judgment Dismissing Complaint

In a decision dated May 4, 2011, Justice Sidney F. Strauss granted the motion for summary judgment brought by the defendants, an owner and construction manager, seeking a dismissal of the plaintiff’s complaint containing causes of action for common law negligence and violations of Labor Law §§200 and 241(6).  The plaintiff, a concrete laborer, was using a come-a-long and was raking concrete. The floor where he was working was constructed of beams with Q-deck on top and then two layers of rebar on top of the Q-deck. To pour the concrete, several sections of eight-foot hose were connected to each other with clamps. The cement was supplied by a cement truck and pumped up through the hoses. After a section of the floor was poured, the laborers would remove the clamps that held the sections of hose together and the hoses would then be carried to the other side of the floor for washing. Just prior to the accident, the hose had been broken apart by one of the plaintiff’s coworkers. The plaintiff picked up an eight-foot section of hose and hung it over his right shoulder. Part of the those then went through the first level of rebar and became caught in the second level of rebar. While holding the hose with both arms wrapped around it, the plaintiff tried to yank the hose at least five times to free it. The plaintiff then felt something pop in his back and he fell to the floor.  The Court dismissed the common law negligence and Labor Law §200 causes of action because the plaintiff’s claims implicated the means and methods of his work and the owner and construction manager did not supervise, direct or control the plaintiff’s work or have notice of any allegedly hazardous condition. Regarding the cause of action for Labor Law §241(6) premised upon violations of Industrial Code Rules 23-1.5, 23-1.7(b)(i) and 23-2.2, the Court determined that the defendants established that the Rules were either general safety provisions or not applicable to the facts of the case.

Squerciati v. The New York Times Building LLC et al., Index No.: 22535/08 (New York Co. Sup. Ct., May 4, 2011)

Court Dismisses All Claims Against Second Third-Party Defendant Safety Auditing Company 

n a decision dated April 8, 2011, Justice Charles A. Markey granted second third-party defendant’s motion for summary judgment dismissing all claims and cross-claims against it. The plaintiff was standing on a scaffold dismantling a roll-up garage door. While attempting to remove a fastener for the roll-up mechanism, the mechanism sprung forward, striking the plaintiff in the head. The plaintiff was rendered unconscious and he subsequently fell from the scaffold.
The second third-party defendant was engaged by the City of New York to provide safety auditing services pursuant to a written contract. The indemnification clause in the contract required that the party to be indemnified prove that the second third-party defendant’s negligence caused the plaintiff’s accident. In granting second third-party defendant summary judgment, the Court held that the second third-party defendant was free of any negligence and it did not have actual or constructive notice of any dangerous condition. Therefore, the Court held that no party was entitled to indemnification from the second third-party defendant.

Fernandez v. The City of New York, et al., Index No.: 21228/06 (Queens Co. Sup. Ct., April 8, 2011)

In Memoriam:  Irvin Lederer (1952-2011) The partners and associates of Fabiani, Cohen & Hall are saddened by the untimely death of their longtime colleague.  Irv was an accomplished litigator and a wonderful person who was beloved by all who knew him. We will truly miss him.

John V. Fabiani, Jr. and Stephen M. Cohen lectured at a Zurich North America seminar entitled “New York Labor Law §§200, 240(1) & 241(6): A Primer,” in Parsippany, New Jersey.

Court Grants General Contractor Summary Judgment On Its Cause Of Action For Contractual Indemnification Against Plaintiff’s Employer

In a decision dated February 18, 2011, Justice Judith J. Gische granted the defendant/third-party plaintiff’s (“general contractor”) summary judgment motion seeking contractual indemnification against third-party defendant (“plaintiff’s employer”).  The Court found that plaintiff’s employer’s subcontract agreement with the general contractor, which required the plaintiff’s employer to hold harmless and indemnify the general contractor, and the plaintiff’s employer’s insurance rider, which required it to obtain insurance for the benefit of the general contractor, were not inconsistent.  Further, as the agreement did not condition plaintiff’s employer’s obligation to indemnify the general contractor on a finding that plaintiff’s employer was negligent, plaintiff’s employer’s obligation to indemnify the general contractor with respect to the plaintiff’s causes of action pursuant to Labor Law §§240(1) and 241(6) was unconditional, and the general contractor’s summary judgment motion was not premature.

Palamar v. Koch Skanska, Inc. et al., Index No.: 114187/04 (New York Co. Sup. Ct., February 18, 2011)