Firm News

Court Dismisses Complaint Against City Where Injured Plaintiff Was Struck By Construction Plate While It Was Being Moved In Roadway

In a decision dated July 26, 2022, the Hon. Lynn R. Kotler of New York County Supreme Court granted the motion for summary judgment of our client, the City of New York, seeking a dismissal of plaintiff’s causes of action for violation of Labor Law §§200, 240(1) and 241(6) and for common law negligence. The plaintiff, a Verizon employee, brought a personal injury action claiming he was allegedly struck by a construction plate while it was being moved at a Verizon project located in the roadway of 10th Avenue, between West 36th Street and West 37th Street, in Manhattan. In support of its motion, the City argued that plaintiff cannot prove the City had notice of the subject trench work condition and therefore cannot be held liable under Administrative Code §7-201(c)(2). The plaintiff argued that §7-201 is inapplicable and the City can otherwise be held liable under Labor Law §§200, 240(1) and 241(6) as owner of the public roadway. The City maintained that it lacked the requisite nexus to Verizon’s work and points to the fact that Verizon did not have a valid permit for the subject work. The Court determined that the City met its burden of setting forth evidentiary facts and granted it summary judgment dismissing all claims as to the City as a matter of law.

Conrad Powell v. The City of New York, Index No. 159841/2018 (Sup. Ct. N.Y. Co., July 26, 2022)

Court Dismisses Complaint Against Defendant Contractor in action Involving Plaintiff’s Slip and Fall on Wet Sidewalk

In a decision dated September 7, 2022, the Hon. Alexander Tisch of New York County Supreme Court granted the motion for summary judgment of our client, Yonkers Contracting Company, Inc. (“YCC”), seeking a dismissal of the plaintiff’s complaint. The plaintiff alleged that she slipped and fell because of a wet condition on the sidewalk located on 33rd Street between 10th and 11th Avenues in New York, New York. Specifically, there is an elevated park, owned by the City of New York, located on the northern side of 33rd Street. There is a retaining wall separating the City park from the sidewalk, and this wall includes “weep holes” to allow water to drain from the City park down onto the adjoining sidewalk. It was alleged that the water draining from the park via the “weep holes” in the retaining wall allowed the subject area of the sidewalk to become slippery thereby causing the plaintiff’s accident. In support of its motion for summary judgment, YCC came forward with evidence that it was retained by the New York City Transit Authority (“TA”) to build a retaining wall. The plans for the retaining wall that were provided to YCC included the specifications for the construction of “weep holes”, which were designed by non-party, Parsons Brinkerhoff (“PB”). After the work was completed by YCC, the TA issued a substantial completion letter to YCC signifying that the work was completed by YCC and that it “was pursuant and in compliance with the drawings and spec[ifications].” Furthermore, there were no issues with the “weep holes” and no complaints about them from the time the work was completed in 2012 until the date the substantial completion letter was issued, which was approximately six months prior to the plaintiff’s accident. As a general rule, a builder or contractor is justified in relying upon the plans and specifications which he has been contracted to follow (citations omitted). A contractor that performs its work in accordance with contract plans many not be held liable unless those plans are so patently defective as to place a contractor of ordinary prudence on notice that the project, if completed according to the plans, is potentially dangerous. (citations omitted) In granting summary judgment to YCC and dismissing plaintiff’s complaint, the Court determined that YCC met its prima facie burden of proof by submitting evidence that YCC was given specifications and drawings by PB and YCC completed the work according to those specifications, which did not result in any known dangerous condition.   

Cristina Jenkins v. City of New York et al., Index No. 157880/2015 (Sup. Ct. N.Y. Co., Sept. 7, 2022)

First Department Reverses Lower Court and Denies Plaintiff’s Motion For Summary Judgment On Labor Law § 240(1) Claim In Case Involving Worker’s Fall From Stilts

In a decision dated June 14, 2022, the Appellate Division reversed the Order of the Supreme Court, New York County and denied the plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim against our client, DOLP 205 Properties II LLC, the landowner. The plaintiff, a plasterer employed by non-party Varanos Group Inc. QCC, allegedly fell when a screw came out of one of the stilts he wore to apply drywall compound to a 10-foot ceiling. On appeal, the First Department held that, given the nature of the work that the plaintiff was performing at the time of his accident, his one-to-four foot fall presented a physically significant elevation within the meaning of Labor Law § 240(1), but there were issues of fact and credibility whether the plaintiff’s assigned task at the time of the alleged accident involved an elevation-related hazard that implicates statutory protection.

Defendant submitted evidence from the plaintiff’s boss, including an affidavit and a transcript of his Workers’ Compensation Board testimony, that he specifically told plaintiff he was not permitted to use stilts and was instead to work only on the ground level. At deposition, plaintiff acknowledged that his boss gave him his initial assignment that day but denied any prohibition on using stilts; plaintiff contended that, when he arrived at his assigned work area, a Varanos supervisor named “Julio” directed him to work on stilts. The First Department held that, evidence that the plaintiff’s boss specifically instructed him to only work on the ground level and not to use stilts raised triable issues of fact whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within the purview of Labor Law § 240(1), and there were issues of fact and credibility whether any such orders were “superseded” by instructions from the alleged Varanos supervisor “Julio” because the plaintiff’s boss denied that Varanos employed anyone named Julio and/or that he authorized this person to oversee the plaintiff’s work.

Christina Gonzalez v. DOLP 205 Properties, LLC et al., 206 A.D.3d 468, 171 N.Y.S.3d 61 (1st Dep’t 2022)

In Memoriam: The partners and staff of Fabiani, Cohen & Hall are saddened by the death of their colleague, Sara S. Matschke, who was with the firm since 2018. She was a skilled attorney who specialized in general liability defense, with an emphasis on construction law. She was a wonderful person and we will truly miss her. Our hearts go out to Sara’s family at this difficult time.

On June 30, Stephen M. Cohen lectured at a seminar for Yonkers Contracting Company, Inc. entitled “Best Practices for Timely Reporting of Incidents/Complaints and Post-Incident/Complaint Investigations” in New York, New York.

We are pleased to announce that Craig Mauro, Nicole Galletta and Michael Fabiani have become Partners of the Firm.

On June 16, Stephen M. Cohen, Thomas J. Hall and Anita D. Bowen lectured at seminars for Skanska USA Building Inc. entitled “Best Practices for Post-Accident Investigation” and “Best Practices for Deposition Preparation” in New York, New York.

Court Dismisses All Claims as to Contractor in Fire Loss Subrogation Action

In a decision dated June 9, 2022, the Hon. Diccia T. Pineda-Kirwan of Nassau County Supreme Court granted the motion for summary judgment brought by our client, Haugland Energy Group, LLC (“Haugland”), seeking dismissal of the plaintiff’s negligence claim against it and dismissal of all of co-defendant PSEG Long Island, LLC’s (“PSEG”) cross-claims. This subrogation action arises out of a fire that occurred on November 25, 2018 at a residence in East Hampton, New York. It is undisputed that the fire was caused by an energized neutral on the utility lines near the home which caused an electrical overload which in turn caused the wiring in the basement of the home to ignite. Prior to the date of the fire, PSEG had hired Haugland to perform storm hardening work across Long Island, including on the circuit servicing the home of plaintiff’s subrogee. Haugland last performed work on the pole at issue 16 days before the fire. The plaintiff alleged that Haugland either negligently performed its work, which lead the insulation around the neutral to break, or that it negligently failed to detect that the insulation was deteriorated. PSEG alleged that it was entitled to either common law or contractual indemnity from Haugland since Haugland deviated from prudent utility practices by failing to replace the damaged portion of wire. PSEG also claimed that it was entitled to coverage as an additional insured under Haugland’s insurance policies pursuant to the terms of the relevant contract.

The Court agreed with our argument that Haugland, having contracted with PSEG, did not owe the plaintiff’s subrogor a duty of care. Further, the Court found that, even if Haugland did owe the plaintiff a duty of care, Haugland could not be held liable for the fire inasmuch as any argument that Haugland was negligent was purely speculative. In terms of PSEG’s cross-claims, the Court agreed with our argument that Haugland did not owe PSEG indemnification either pursuant to the terms of the contract or under the common law given that Haugland was not negligent. Further, the Court rejected PSEG’s arguments with respect to ‘prudent utility practices’ given that Haugland was not hired to inspect the utility lines and performed its work pursuant to the plans generated by PSEG.

Nat’l Gen. Ins. Co. a/s/o Kevin Bishop v. PSEG Long Island, LLC et al., Index No. 615442/2019 (Sup. Ct. Nassau Co., June 9, 2022)

On May 3, Stephen M. Cohen and Thomas J. Hall lectured at a seminar for Elecnor Hawkeye, LLC entitled “Best Practices for Post-Accident Investigation” in Flushing, New York.

Second Department Reverses Lower Court and Denies Plaintiff’s Motion for Summary Judgment on Labor Law §240(1) Claim In Case Involving Worker’s Fall From Ladder

In a decision dated April 27, 2022, the Appellate Division, Second Department reversed the Order of the Supreme Court, Queens County and denied plaintiff’s motion for summary judgment on his Labor Law §240(1) cause of action against our clients, City of New York, New York City Department of Transportation, New York City School Construction Authority and the Comptroller of the City of New York.  The plaintiff, a roofer employed by non-party, Kel-Tech Construction, allegedly fell from an extension ladder at a public high school while renovating a bulkhead on the roof.  The plaintiff moved for summary judgment on liability pursuant to Labor Law §240(1).  On appeal, the Second Department determined that the plaintiff established prima facie liability under Labor Law §240(1) by submitting evidence demonstrating that he was provided with an extension ladder that was secured only on the right side and, as he began to descend the ladder from the roof of the bulkhead to the roof of the school, the ladder shifted to the right and backwards, causing him to fall approximately 12 to 13 feet onto the roof of the school. In opposition, the defendants raised a triable issue of fact regarding whether the ladder shifted to the right and backwards, as the plaintiff testified, or whether the plaintiff’s own actions were the sole proximate cause of the accident. The defendants submitted an affidavit from the plaintiff’s supervisor, who averred that the plaintiff had told him, just after the accident occurred while he was still on the roof, that he had lost his balance as he descended the ladder and jumped off the ladder. In reaching its decision to reverse the lower court and deny summary judgment to the plaintiff, the Second Department found that different versions of the accident given by the plaintiff created triable issues of fact that required a denial of the motion, including a triable issue of fact as to the plaintiff’s credibility.

Andrezj Jurski v. City of New York et al., 204 A.D.3d 983, 165 N.Y.S.3d 371 (2d Dep’t 2022)