Firm News

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.

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

In a decision dated November 17, 2010, Justice Kevin J. Kerrigan, Queens County Supreme Court, held that the City of New York was entitled to summary judgment dismissing the plaintiff’s complaint alleging common law negligence and violations of Labor Law §§200 and  241(6).  The plaintiff was employed as a laborer by Tully Construction.  Tully was hired by the New York State Department of Transportation to repave the Grand Central Parkway.  The City issued work permits that allowed the State and Tully to enter upon the roadway and restrict the flow of traffic for the repaving project.  At the time of the accident, the right and center lanes were closed to public traffic. The plaintiff was straddling the left and center lanes tampering down asphalt when he was struck by a public vehicle traveling at a high rate of speed in the left lane.  The plaintiff alleged that the City owned, maintained and controlled the Grand Central Parkway and failed to properly maintain the workplace.  However, the evidence established that the State was in charge of the project and the City did not participate in the selection of the contractor, perform any work on the project, plan or inspect the lane closures or the placement of warning signs or other traffic control devices.  Rather, the City’s role was largely confined to its regulatory responsibilities of issuing work permits, including the right to issue violations or stop the work if it was not performed in compliance with the terms of the work permit.  Citing Albanese v. City of New York, 5 N.Y.3d 217 (2005), the Court held that the City’s limited role could not subject it to absolute liability  under  Labor  Law  §§200 or  241(6) for an injury allegedly resulting from the inadequacy of traffic control devices, personnel and/or barricades that were put in place by Tully and inspected or approved by the State.  In addition, because  the City did not bear responsibility for the manner in which the work was performed or the safety measures employed during the work, the City was entitled to dismissal of the plaintiff’s claims for common law negligence and pursuant to Labor Law §200.

Vinci v. The City of New York et al., Index No. 14730/08 (Queens Co. Sup. Ct., November 17, 2010)

We are pleased to announce that Kenneth J. Kutner has joined the firm as a Partner.