Firm News

Court Grants Defendant Joint Venture’s Motion for Summary Judgment Dismissing Plainiff’s Complaint Where Defendant Was an “Employer” Within the Meaning of Workers’ Compensation Law §11

In a decision dated February 11, 2011, Justice Herbert Kramer granted defendant Joint Venture’s motion for summary  judgment  dismissing  plaintiff’s  causes  of action for common law negligence and pursuant to Labor  Law  §§200,  240(1) & 241(6).  The plaintiff alleged that while in the course of his employment with a member of the Joint Venture, he suffered an injury to his right thumb, which required partial amputation.  The Joint Venture moved for summary judgment arguing that an employee of a member of a joint venture is a “special employee” of the joint venture and each of its members.  As such, the suit should be barred by Workers’ Compensation Law §11.  In support of the motion, the Joint Venture provided evidence that at the time of his accident, the plaintiff was working at the behest of the Joint Venture’s contract with the NYCDEP, that the Joint Venture purchased worker’s compensation coverage from which the plaintiff was drawing benefits and that the Court was bound by the Workers’ Compensation Board’s finding that the Joint Venture was the plaintiff’s employer.  In opposition, the plaintiff argued that the language of the agreement between the Joint Venture and the NYCDEP provided that the plaintiff was not an employee of the Joint Venture and that the motion was premature in that additional discovery, including depositions, were required to settle the issue of direction and control over the means and methods of the plaintiff’s work.  The Court held that sufficient evidence to grant the motion was found among the undisputed facts and that no further discovery was required.  The Court determined that the Joint Venture was a “special employer” within the meaning of Workers’ Compensation Law §11 and issued an order dismissing the action against the Joint Venture with prejudice.

Valencia v. SPMP Joint Venture et al., Index No.: 15355/09 (Kings Co. Sup. Ct., February 11, 2011)

Court Dismisses Complaint and All Cross-Claims As Against Defendant General Contractor

In a decision dated January 27, 2011 Justice Martin Solomon dismissed the plaintiff union tile-fitter’s complaint against the defendant “core and shell” general contractor because the general contractor did not owe the plaintiff, who tripped and fell into an open grease trap, a duty of care. The Court held that because the condition was created by the subcontractor of a second, “interior-fit-out,” general contractor, and there was no evidence of shared duties between the “core and shell” contractor and the “interior-fit-out contractor,” the Labor Law did not apply to the “core and shell” contractor.

Seifert v. The City of New York Industrial Development Agency et al., Index No. 14714/05 (Kings Co. Sup. Ct., January 27, 2011)

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

In a decision dated January 19, 2011, Justice Angela G. Iannacci 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 on the sidewalk 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.

Gayer v. Willow Wood Associates, LP et al., Index No. 14285/08 (Nassau Co. Sup. Ct., January 19, 2011)

Court Grants City of New York’s Motion for Summary Judgment Dismissing Plaintiff’s Claims for Common Law Negligence and Pursuant to Labor Law §241(6)

In a decision dated January 10, 2011, Justice Paul G. Feinman granted defendant the City of New York’s motion for summary judgment dismissing the plaintiffs’ claims for common law negligence and pursuant to Labor Law §200 and §241(6), predicated upon an alleged violation of Industrial Code Rule 23-1.7(e) (tripping hazards).  At the time of the accident, the plaintiff, an ironworker, had been replacing steel on the Williamsburg Bridge.  His work involved removing rivets with a “helldog.” The rivets were being caught by a cone and then dumped into buckets for removal.  At lunchtime, the plaintiff was walking from his work area to a shanty when he allegedly tripped over a broken rivet located approximately 30 feet from his work area.  The plaintiff did not see the subject rivet prior to the accident.  Judge Feinman held that, despite inspections performed by City employees, there was no evidence that the City supervised or controlled the plaintiff’s work and, as such, the City was entitled to dismissal of the plaintiffs’ cause of action for common law negligence and pursuant to Labor Law §200.  The Court further held that, despite the City’s awareness that some rivets may not be caught by the cones, there was no evidence that the City had notice of the alleged condition.  Finally, holding that the rivet over which the plaintiff allegedly tripped was integral to the steel replacing work being performed on the Bridge, the Court also dismissed the plaintiffs’ Labor Law §241(6) claim predicated upon an alleged violation of Industrial Code Rule 23-1.7(e) (tripping hazards).

Zieris v. The City of New York, Index No. 103335/06 (N.Y. Co. Sup. Ct., January 10, 2011)

Court of Claims Denies Claimant’s Motion for Partial Summary Judgment Pursuant to Labor Law §§240(1) and 241(6) Because There Was a Question of Fact Regarding Whether Claimant’s Actions Were the Sole Proximate Cause of His Accident

The defendants successfully defended the claimant ironworker’s motion for summary judgment pursuant to Labor Law §240(1) and §241(6) predicated upon an alleged violation of Industrial Code Rule 23-1.16(b) (safety belts, harnesses, tail lines and lifelines: attachment required).  Although the Court of Claims found that the claimant, who allegedly fell 10 feet to the ground while walking along a steel girder, established a prima facie case that he was not provided with the proper protection, the Court held that there was a question of fact as to whether the claimant was the sole proximate cause of his accident. The defendants proffered evidence that the claimant was required to undergo fall protection training, was supplied with harnesses, lanyards and other safety equipment and knew that he was required to use this equipment. The claimant also should have remained tied off, climbed to the ground and untied, walked along the ground to the other side of the girder, tied off and climbed to the area where he was to continue his work. His failure to remain tied off at all times while at a height raised an issue of fact regarding whether his actions were the sole proximate cause of the accident.

Mell v. The State of New York et al., Index No. 114870 (Court of Claims, December 30, 2010)

We are pleased to announce that Melissa R. Callender-Lee and Michael P. Tobin have become Partners of the firm and Todd A. Paradeis has been elevated to Senior Counsel.

Thomas J. Hall lectured at a Travelers Construction Underwriting seminar entitled “Guidelines for an Effective Contractual Risk Transfer Program,” in New York City.

John V. Fabiani, Jr. lectured at the New York State Bar Association seminar entitled “Construction Site Accidents- 2010 Update,” in New York City.

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

In a decision dated November 18, 2010, the Appellate Division, First Department, affirmed the trial court’s dismissal of the plaintiff’s complaint.  The plaintiff, an ironworker, alleged that while working on a bridge owned by defendant the City of New York, he was struck by a pick-up truck owned and operated by his employer when he attempted to enter a lane of traffic on the bridge that was closed to the public by his employer.  The Appellate Division held that the City could not be held liable for common law negligence or pursuant to Labor Law §200 because it did not exercise supervision and control over the plaintiff’s work.  Although the City had to approve the plaintiff’s employer’s request to close lanes to public traffic and had hired engineers to ensure that the work was being performed according to the contract plans and specifications, the First Department held that such conduct did not amount to supervision and control over the plaintiff’s work.  In addition, the First Department agreed that the jersey barrier over which the plaintiff had to step to enter the roadway was not an inherently dangerous condition in the workplace such that the City could be held liable to the plaintiff, even in the absence of supervisory control over his work. Furthermore, because the City was not the plaintiff’s employer, Labor Law §200 liability could not be based upon alleged violations of the Occupational Safety and Health Act  which govern employer/employee relationships.  The Appellate Division also determined that Industrial Code Rules 23-1.29 (public vehicular traffic) and 23-1.32 (imminent danger- notice, warning and avoidance) were inapplicable to the facts of this case.

Delaney v. The City of New York, 78 A.D.3d 540 (1st Dep’t 2010)

Thomas J. Hall in conjunction with Travelers lectured at a seminar for J.T. Magen entitled “Accident Response and Investigation,” in New York City.