Firm News

Court Denies Summary Judgment to Plaintiff Motorist Who Struck Excavator While It Was Being Moved In Roadway

In a decision dated March 13, 2023, the Hon. Ben R. Barbato of Bronx County Supreme Court denied the plaintiff’s motion for summary judgment on liability in a motor vehicle action.  The plaintiff was the operator of a vehicle involved in a collision with an excavator owned by our client, Skanska/Walsh Joint Venture.  The collision occurred at 4:00 a.m., after the plaintiff’s vehicle rounded a bend in the road and encountered the excavator making a turn into a driveway entrance at LaGuardia Airport from a designated left turn lane.  The plaintiff contends that the excavator initiated the turn when her vehicle was one car length away and the right front passenger side of her vehicle impacted the right front passenger side of the excavator; the excavator operator, William Webster, did not observe the plaintiff’s vehicle at any time prior to the collision and, due to the size and weight of the excavator, he was not alerted to the collision when it occurred.  The plaintiff argued that the excavator failed to yield the right-of-way and caused the collision by turning in front of her vehicle, in violation of Vehicle and Traffic Law §§1141 and 1163(a).  In its opposition to plaintiff’s motion, Skanska challenged the plaintiff’s inconsistent testimony as to how the collision occurred.  Skanska also submitted the affidavit of a motor vehicle accident reconstruction and traffic safety expert who concluded that the plaintiff’s account of how the collision occurred was physically impossible (e.g., the excavator would have exceeded its maximum acceleration rate to reach the point of impact) and the physical evidence supported the conclusion that the impact occurred when the front passenger side of the plaintiff’s vehicle struck the rear passenger side of the excavator in a glancing blow after the excavator had essentially completed its left turn.  Judge Barbato held that the plaintiff failed to satisfy her initial summary judgment burden because her own testimony raised issues of fact as to the circumstances of this incident (e.g., she could not recall where the collision occurred in relation to the bend in the road, the speed limit or whether she had to slow her vehicle prior to the collision).  The Court noted that, to the extent that the plaintiff alleged that the excavator had been stopped in the middle of the roadway when she first encountered it, there was an issue of fact whether she violated her duty of care to avoid the collision. The Court also admonished plaintiff’s counsel for repeatedly interrupting the plaintiff at her deposition in an attempt to rehabilitate the plaintiff’s comments or otherwise clarify the record.

Yorkina Torres-Martinez v. William Webster, et al., Index No. 20291/2021E (Sup. Ct. Bronx Co., Mar. 13, 2023)

On March 15, Thomas J. Hall lectured at a seminar for Travelers entitled “Evaluating and Defending Loss of Earnings Claims by Union Construction Workers” in New York, New York.

Court Dismisses Plaintiff’s Labor Law §200 and Common-Law Negligence Claims as to Defendant Owner and Grants Owner Common-Law Indemnification Against Employer in Case Involving Plaintiff’s Fall from Scaffold

In a decision dated January 6, 2023, the Hon. Mojgan C. Lancman of Queens County Supreme Court granted the motion of our client, defendant/property owner, Waterfront Resort, Inc., for summary judgment dismissing plaintiff’s causes of action pursuant to Labor Law §200 and for common-law negligence. The Court also granted Waterfront’s motion for summary judgment on its third-party claim for common-law indemnification against plaintiff’s employer, Wing Jay Construction, Inc. The plaintiff, while employed by Wing Jay on a project involving the demolition of an existing warehouse and the construction of a residential condominium complex at 109-09 15th Avenue, Queens, New York, allegedly fell from a scaffold and sustained a traumatic brain injury. Regarding the §200 and common-law negligence causes of action, the Court determined that the plaintiff’s accident did not result from any allegedly dangerous or defective condition at the subject premises, but rather, the means and method of the work. Additionally, it was also undisputed that Waterfront had exercised no supervisory control over the manner in which the plaintiff’s work was performed. Regarding the third-party claim for common-law indemnification, the Court found that Waterfront was entitled to indemnification from Wing Jay because Waterfront established that it was not negligent and its liability was purely statutory and vicarious.  

Yun Quan Gao et al. v. Waterfront Resort, Inc. et al., Index No. 707824/2018 (Sup. Ct. Queens Co., Jan. 6, 2023)

First Department Reverses Lower Court and Dismisses Plaintiff’s Labor Law §241(6) Claim In Case Involving Worker Who Struck Neck On Overhead Object

In a decision dated December 6, 2022, the Appellate Division reversed the Order of the Supreme Court, New York County denying summary judgment on the plaintiff’s Labor Law §241(6) claim predicated upon a violation of 12 NYCRR §23-1.7(e)(1) (“sharp projections [in passageways] which could cut or puncture any person shall be removed or covered”) and, upon searching the record, dismissed the Labor Law §241(6) claim against our client, Consolidated Edison Company of New York, Inc. (“ConEd”), which contracted for the work on the premises. 

The plaintiff, a mechanic investigating a reported gas leak at a residential apartment building, was allegedly injured when he exited the boiler room in the basement and as he ascended the topmost of three exterior steps, he struck his neck on a plywood board installed overhead in the doorway to the basement vestibule.  The premises owner had previously installed the plywood board in the top portion of the doorway to conceal the basement opening from the street level after the pipes in the boiler room had been stolen.  In support of its summary judgment motion seeking dismissal of the Labor Law §241(6) claim and in opposition to the plaintiff’s summary judgment motion, ConEd submitted an affidavit from its construction site safety expert who inspected the plywood board and opined that the Industrial Code did not apply and was not violated because the plywood board was not “sharp”; he substantiated his opinion with a photograph of the edge of the board.  The First Department held that the plywood board was not a sharp projection that could cut or puncture and thus, the Industrial Code provision was inapplicable.

Michael Widdecombe v. Consolidated Edison Company of New York, Inc., 211 A.D.3d 450, 180 N.Y.S.3d 95 (1st Dep’t 2022)

On November 9, Stephen M. Cohen and Thomas J. Hall lectured at a seminar for Alliant entitled “Best Practices for Post-Accident Investigation” in Uniondale, New York.

Court Dismisses Plaintiff’s Labor Law §240(1) Claims as to All Defendants in Trip and Fall Accident on a Permanent Staircase at a Construction Site

In a decision dated October 14, 2022, the Hon. Ingrid Joseph of Kings County Supreme Court granted the motion and cross-motion brought by defendants, Update Systems Electrical Contracting Corp. and Liberty Elevator Corporation a/k/a Liberty Elevator of NY, respectively, which sought dismissal of plaintiff’s cause of action pursuant to Labor Law §240(1) as a matter of law because he tripped and fell on a permanent staircase. Our clients, Archstone Builders LLC and Deco Towers Associates, LLC, submitted an affirmation in support of the motions and sought dismissal of the plaintiff’s §240(1) claim as to all defendants. In reaching its decision, the Court held that “[t]he allegations in the complaint assert[ed] a normal usual and ordinary danger[] of construction outside the scope of the protections provided by Labor Law 240.” Additionally, “a permanent staircase is not a safety device defined by Labor Law 240.” In light of the foregoing, the Court dismissed plaintiff’s cause of action pursuant to Labor Law §240(1) as to all defendants as a matter of law.

Dario Xavier Rojas Rivera v. Archstone Builders LLC et al., Index No. 533141/2021 (Sup. Ct. Kings Co., Oct. 14, 2022)

Court Dismisses Plaintiff’s Motor Vehicle Action Against Tractor-Trailer Owner and Driver

In a decision dated July 12, 2022, the Hon. Ulysses B. Everett of Queens County Supreme Court granted the motion for summary judgment dismissing the complaint brought by our clients, Midnight Trucking, LLC (“Midnight Trucking”) and Michael A. Zizzo, the owner and operator of a tractor-trailer, respectively. In this motor vehicle action, the plaintiff alleged that he had stopped his vehicle at a yield sign at the end of an exit ramp and was waiting for traffic to clear when the tractor-trailer, traveling in the lane closest to him, struck the front passenger side door of his vehicle. The plaintiff claimed he did not see the 80-foot-long tractor-trailer before the collision and he could not explain how the collision occurred. The tractor-trailer had three mounted cameras and the video footage contradicted the plaintiff’s account of the accident. In support of the motion, we submitted an affidavit from Mr. Zizzo attesting to the circumstances of the accident and an affidavit from Midnight Trucking’s IT manager authenticating the video footage. We also submitted an affidavit from an engineering and biomechanical expert, who opined that the plaintiff had a clear and unobstructed view of the tractor-trailer at all times prior to the accident. This was based on the majority of the tractor-trailer having been stopped past the yield sign at the time when the plaintiff’s vehicle arrived at the end of the exit ramp. The expert also opined that the collision occurred when the plaintiff’s vehicle moved forward and struck the rear portion of the tractor-trailer.

The Court concluded that the defendants established their prima facie entitlement to summary judgment as a matter of law because the plaintiff entered the tractor-trailer’s lane of travel without yielding to the defendants’ right of way, in violation of Vehicle and Traffic Law §§1142(b) and 1172(b), and the plaintiff’s negligence was the sole proximate cause of the collision. The Court held that the plaintiff did not raise a material issue of fact because his contention that the tractor-trailer sideswiped his vehicle was contradicted by the videographic evidence and the analysis of the defendants’ expert, and the plaintiff failed to prove that the driver of the tractor-trailer could have done anything differently to avoid the collision.

Claudy Hyppolite v. Midnight Trucking, LLC et al., Index No. 715056/2018 (Sup. Ct. Queens Co., July 12, 2022)

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)