Firm News

On January 19, John V. Fabiani and Michael P. Tobin lectured at a seminar for Suffolk Construction entitled “Best Practices for Post-Accident Investigation” in New York, New York.

On December 14, Stephen M. Cohen and Thomas J. Hall lectured at a seminar for Posillico Civil and Alliant Insurance Services entitled “Best Practices for Post-Accident Investigation” in Farmingdale, New York.

Court Dismisses Complaint in its Entirety as to Defendant Housing Corporation

In a decision dated November 23, 2021, Hon. Frederick Sampson dismissed the plaintiff’s complaint as to our client, Forest Hills Garden Corporation. We secured dismissal of plaintiff’s complaint in a summary judgment motion made immediately after answering and before conducting any discovery. By making the motion immediately after answering, we saved our client the expense of conducting discovery in this multi-party litigation. Plaintiff, a tenant in a privately owned home in Forest Hills Gardens was injured when she tripped and fell in a hole on the lawn in front of her home. She sued the homeowner as well as Forest Hills Gardens Corporation and several contractors. Relying on the By-Laws and Architectural Guidelines of the Forest Hills Gardens Corporation, we established that it had no duty to maintain privately owned property in Forest Hills Gardens.

Jaime Hochhauser v. Tortoroli and Tortorli, Inc. et al., Index No. 702367/2019 (Sup. Ct. Queens Co., Nov. 23, 2021)

Court Dismisses Negligence Claim and Awards Contractual Indemnity to Provider of Man-lift in Action Brought By Railroad Employee Plaintiff Who Was Injured When Train Struck a Man-lift that Stopped on Railroad Tracks

In a decision dated October 26, 2021, the Honorable Julian D. Schreibman of Ulster County Supreme Court granted the motion for summary judgment brought by our client, Kiewit Constructors, Inc. (“Kiewit”), seeking dismissal of the plaintiff’s negligence claim against it and summary judgment on its cross-claim against the defendant, Steelways, Inc. (“Steelways”), for contractual indemnification.  The plaintiff, an employee of the defendant, CSX Transportation (“CSXT”), alleged that on March 7, 2017, he sustained personal injuries when a CSXT train struck a man-lift which had inexplicably stopped on the railroad tracks at a public crossing, causing the man-lift and a derailed train car to strike a piece of track maintenance equipment in which the plaintiff was sitting.  Kiewit had provided the man-lift to Steelways to use to wash steel pipes pursuant to their contract.  The accident occurred at the end of the work day, when one of Steelways’ employees attempted to drive the man-lift across the tracks to Kiewit’s facilities for overnight storage while other Steelways employees flagged traffic.  The plaintiff alleged that Kiewit was negligent in providing a defective man-lift, failing to properly train and supervise Steelways’ employees and failing to operate the CSXT train at the proper speed.  To determine whether Kiewit was entitled to summary judgment, the Court first considered whether Kiewit owed the plaintiff a duty of care, which turned on whether Kiewit owed the plaintiff a duty to control CSXT’s and Steelways’ employee’s conduct.  

The Court agreed with Kiewit that it did not owe the plaintiff a duty to control CSXT’s conduct for the plaintiff’s benefit because Kiewit did not have any relationship with CSXT.  The Court also agreed with Kiewit that it was not responsible for Steelways’ employee’s alleged failure to properly operate the man-lift while crossing the tracks because Steelways was an independent contractor.  Kiewit’s contract with Steelways expressly provided that Steelways was to provide all supervision with respect to its work of power washing steel pipes for Kiewit.  The Court rejected Steelways’ argument that a contract provision requiring Steelways to perform the work “in a prompt manner as directed by Kiewit” created an issue of fact. The Court determined that the provision merely reflected Kiewit’s “general supervisory powers” over Steelways.  The Court also rejected Steelways’ argument that the contract should be construed against Kiewit, the drafter of the agreement, because the deposition testimony of Steelways’ president that he read every contract, including the contract at issue, showed he was a sophisticated party.  The Court was also unpersuaded by Steelways’ argument that Kiewit exercised supervision and control over the work because Kiewit had provided some initial training to Steelways’ employees regarding how to use the man-lift. According to the Court, this kind of activity only demonstrated that Kiewit exercised general supervisory control over the work.  The  Court also agreed plaintiff had failed to refute Kiewit’s prima facie showing that the man-lift was not defective.  Kiewit established its prima facie burden based on the evidence that its foreman had inspected the man-lift five days before the accident, that Steelways had inspected it on the morning of the accident and that Steelways’ employees had operated the man-lift on the day of the accident without incident.  The Court found that Steelways’ contentions that Kiewit failed to establish the man-lift was not in use in the five days between Kiewit’s safety inspection and the date of the accident, and that Steelways had not shown its inspection form was approved by the man-lift’s manufacturer were speculative and insufficient to create a triable issue of fact as to whether the man-lift Kiewit provided was defective. 

The Court also granted Kiewit’s motion for summary judgment on its cross-claim for contractual indemnification against Steelways because the accident “ar[ose] out of” Steelways’ work under the indemnity provision.  The Court rejected Steelways’ argument that the contract was void based on its president’s testimony that a person whom he could only identify as someone possibly named  “Dave” from Kiewit had orally told him that Kiewit would be responsible for supervising Steelways’ employees. The Court determined this testimony was insufficient to avoid summary judgment.    

Corey Kiernan v. CSX Transportation, Inc. et al., Index No. EF2017-2094 (Sup. Ct. Ulster Co., Oct. 26, 2021)

FCH congratulates Stephen M. Cohen, John V. Fabiani, Thomas J. Hall, Seth H. Cohn and Michael S. Fabiani on being recognized as 2021 Super Lawyers.

Plaintiff Who Allegedly Fell 50 Feet From Marine Parkway Bridge Through an Opening in Containment Tarp Was Denied Summary Judgment on Labor Law §§240(1) and 241(6) Claims

In a decision dated August 3, 2021, the Honorable Timothy J. Dufficy of Queens County Supreme Court held that plaintiff Artur Cesar was not entitled to summary judgment pursuant to Labor Law §§240(1) and 241(6) despite having fallen 50 feet from a bridge into the water below. In his complaint, plaintiff alleged that on August 3, 2017, he was lawfully working for Kiska Construction, Inc. on the Marine Parkway Bridge in Rockaway performing various painting duties when he fell through an opening in the tarp and into the water below, a height of approximately 50 feet. Following the close of discovery, plaintiff moved for summary judgment pursuant to CPLR 3212 on his Labor Law §§240(1) and 241(6) claims against our client, the Triborough Bridge and Tunnel Authority (“TBTA”). Judge Dufficy initially found that plaintiff had established a prima facie case in support of his Labor Law §240(1) claim. As per the plaintiff’s deposition testimony, he demonstrated that the defendant failed to provide him with an adequate safety device while he was working at an elevation and that this failure was a proximate cause of his injuries. Specifically, plaintiff established that, while he was performing various bridge painting duties, he lost his balance and fell through an opening in the tarp and into the water below, causing him to become injured. Plaintiff further established that he was not provided with proper protection because there was no safety cable for him to tie off to in the area where he was working at the time of the accident.

Ultimately, Judge Dufficy held that in opposition to the plaintiff’s motion on his Labor Law §240(1) claim, the defendant raised a triable issue of fact “whether it provided the plaintiff with proper protection.” Specifically, the defendant obtained an affidavit from Safety Director Brian Van Westervelt who averred that the tarp in the area was completely closed and there were no openings through which the plaintiff could have fallen. He further stated there was a safety cable spanning the area that was in easy reach of the plaintiff and onto which he could have easily clipped his lanyard. The Court also found credible and persuasive the affidavit of site safety expert, Martin Bruno, who responded to the accident site and conducted an inspection mere days after the accident occurred. Mr. Bruno was able to state from personal knowledge and clear photographs that there was indeed a proper safety cable in the area where plaintiff was working at the time of his accident. Thus, the Court denied plaintiff’s motion for summary judgment on his Labor Law §240(1) cause of action.

Turning to plaintiff’s claim pursuant to Labor law §241(6), summary judgment was also denied. In support of his §241(6) claim, plaintiff alleged a violation of Industrial Code Rule 12 NYCRR 23-1.7(b)(1) which provides: “Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place by a safety railing constructed and installed in compliance with this Part (rule).” Although the Courts have held this provision to be specific enough to support liability and plaintiff established a prima facie case that it was violated, we again raised an issue fact. In support of the defendant’s opposition papers, Mr. Westervelt averred in a sworn affidavit that the tarp in the area where plaintiff was working at the time of his accident was completely closed and there were no openings through which he could have fallen. In sum, as there were issues of fact on both Labor Law §§240(1) and 241(6) claims, summary judgment in plaintiff’s favor was not warranted and his motion was denied.

Artur Cesar v. Triborough Bridge and Tunnel Authority, Index No. 700217/18 (Sup. Ct. Queens Co., Aug. 3, 2021)

On August 10, Thomas J. Hall lectured at a seminar for Haugland Group entitled “Best Practices for Post-Accident Investigation” in Melville, New York.

We are pleased to announce that Patrick Aurilia, Frank Thompson and Bryan Tiggs have become Partners of the Firm.

On July 1, Stephen M. Cohen and Thomas J. Hall lectured at a seminar for TF Cornerstone entitled “Best Practices for Post-Accident Investigation” in Long Island City, New York.

Court Dismisses Plaintiff’s Labor Law §200 and Common Law Negligence Claims as to Owner and Awards Owner Summary Judgment Against Plaintiff’s Employer on its Breach of Contract and Contractual Indemnity Claims in Construction Accident Case

In a decision dated April 26, 2021, the Honorable Lucindo Suarez of Bronx County Supreme Court granted our client EIB Flatbush LLC’s (“EIB”) motion for summary judgment, seeking (i) dismissal of the plaintiff’s Labor Law §200 and common law negligence claims against it, (ii) judgment as against Blink Holdings, Inc. d/b/a Blink Fitness (“Blink”) for contractual indemnity, inclusive of attorneys’ fees, costs and expenses, (iii) judgment as against Blink for breach of contract for the failure to make its self-insured retention available to EIB, (iv) judgment as against Blink for breach of contract for the failure to procure insurance and (v) for dismissal of all cross-claims and counter-claims against EIB. The plaintiff, an employee of third-party defendant, Atlantic State Development (“ASD”), was injured while supervising the unloading of a shipment of vinyl tiles to be used in connection with the fit out of the Blink gym located at 833 Flatbush Avenue. EIB was the owner of the premises and it leased the entire second floor and a portion of the first floor to Blink. Blink retained ASD to act as the general contractor in connection with the renovation of its leasehold. Pursuant to the terms of the lease, Blink was required to indemnify EIB for any claims “arising, directly or indirectly, out of from or on account of any occurrence in, at, upon or from the Demised Premises or occasioned wholly or in part through the use and occupancy of the Demised Premises by [Blink].” Blink contended that because the accident occurred in the street, where the truck making the delivery had parked, its indemnification obligations were not triggered. We argued that Blink’s interpretation of the indemnification provision was overly narrow and that, pursuant to the terms of the lease, EIB was entitled to indemnification because at the time of the accident the plaintiff was working on the build out of Blink’s leasehold for which Blink had been retained by contract. Therefore, the alleged accident clearly “arose out of” and was “occasioned by” Blink’s use and occupancy of the premises, thereby triggering its indemnity obligations. In terms of EIB’s breach of contract claim against Blink, we argued that Blink breached its obligations under the lease both because it refused to make its $250,000 self-insured retention available to EIB and because it obtained $1 million in commercial general liability coverage and $25 million in excess coverage as opposed to the $5 million in commercial general liability coverage required by the lease. The Court agreed with the arguments set forth in our motion dismissing the plaintiff’s Labor Law §200 and common law negligence claims against EIB, granting judgment in EIB’s favor on its breach of contract claim against Blink and awarding it unconditional contractual indemnity, inclusive of attorney’s fees, costs and expenses from Blink.

Nicholas Uzzilia v. Jo-Tone Carpet, Inc. et al., Index No. 23858/2016E (Sup. Ct. Bronx Co. Apr. 16, 2021)