Firm News

Court Dismisses Labor Law Complaint In Its Entirety Where Plaintiff Was Allegedly Injured When A Portion Of The Wall He Was Demolishing Fell Onto Him

In a decision dated January 4, 2021, the Honorable Ingrid Joseph of the Kings County Supreme Court granted our client A & F Commercial Builders, LLC’s (“A & F”) motion for summary judgment, seeking (i) dismissal of the plaintiff’s Complaint, including his Labor Law §§ 240(1), 241(6) and 200/common-law negligence claims, (ii) dismissal of the third-party claims of defendant/third-party plaintiffs Sands Brook, LLC, The Stop & Shop Supermarket Company, LLC and Ahold U.S.A., Inc. (collectively, “premises owner”) for common-law indemnification and contribution, and (iii) judgment as against DGC Capital Contracting Corp. (“DGC”), the plaintiff’s employer, on A & F’s third-party claim for contractual indemnification.  As part of remediation work following Hurricane Sandy, the plaintiff carpenter was removing drywall from a portion of a wall in a kitchen at the Shop & Shop supermarket at 1710 Avenue Y in Brooklyn, New York.  The plaintiff alleged that a piece of tile/drywall fell from above the cut line (that is, the portion of the wall that was scored for removal) and cut his forearm.  The Court held that A & F established that Labor Law § 240(1) was not applicable because the piece of tile/drywall that allegedly fell had become a permanent part of the building’s structure and, in any event, the statute was not violated because the alleged accident did not occur under circumstances in which a securing device of the kind enumerated under the statute would have been necessary or even expected.  Specifically, A & F submitted evidence that the tile and drywall were so strongly affixed to the studs that the plaintiff had to use hammers and crowbars to remove the tile/drywall from the portion of the wall he was demolishing and there was no objective evidence that the tile/drywall above the cut line was affected by his activities.  The Court held that A & F established that Labor Law § 241(6) was not violated because the cited Industrial Code regulations pertained to securing devices but A & F established there was no foreseeable need for the upper portion of the wall to be secured under these circumstances.  The Court held that A & F established its entitlement to dismissal of the plaintiff’s Labor Law § 200 and common-law negligence claims because it did not have actual or constructive notice of any alleged defective condition in the subject wall.  The Court granted dismissal of the premises owner’s claims for common-law indemnification and contribution as against A & F because A & F proved that it was not actively negligent.  The Court also granted A & F summary judgment on its contractual indemnity claim as against DGC to the extent that it is not covered by the additional insurance policy that DGC procured for A & F.

Kevin Coward v. Sands Brook, LLC, et al., Index No. 17248/2013 (Kings Co. Sup. Ct. Jan. 4, 2021)

Court Finds That Contract Provision Requiring Indemnity for Claims “Arising Out Of” the Work is Triggered Where Third-Party Defendant Returns to Work Site to Resolve a Contract Dispute

In a decision dated November 24, 2020, the Honorable Frederick D.R. Sampson of Queens County Supreme Court awarded our clients Urban Foundation (“Urban”) summary judgment dismissing the plaintiff’s Labor Law §§200 and 241(6) claims against it, and our clients 33 Bond GC LLC (“Bond GC”), 33 Bond St. LLC (“Bond LLC”) and TF Cornerstone (“Cornerstone”) summary judgment dismissing the plaintiff’s Labor Law §200 claim against them. The plaintiff’s only surviving claim was his Labor Law §241(6) claim against 33 Bond GC, Bond LLC, and Cornerstone.  The Court also granted our motion for summary judgment on their behalf against the third-party defendant, Gramercy Group, Inc. (“Gramercy”), for contractual indemnification.  As part of a construction project, 33 Bond GC hired Gramercy to demolish a parking garage.  The contract required Gramercy to leave behind a certain amount of debris.  Gramercy finished its demolition work, but 33 Bond GC and Gramercy disputed whether Gramercy had left the correct amount of debris at the site.  On the day of the accident, representatives of 33 Bond GC and Gramercy went to the site to resolve the dispute.  The plaintiff’s accident occurred when, while walking the site, he was struck by an excavator operated by Urban.  The contractual indemnity provision in 33 Bond GC’s contract with Gramercy required it to indemnify the third-party plaintiffs for all claims which “arise out of” or are “connected with . . . the performance of the work.”  Gramercy contended that because it had finished its demolition work the accident did not arise out of its work.  We argued that Gramercy’s interpretation of the indemnity provision was overly narrow, and that under controlling New York law, its indemnity obligation was triggered because at the time of the accident the plaintiff was employed by Gramercy and he was performing work for Gramercy that 33 Bond GC had hired it to perform.  Therefore, the plaintiff’s accident “arose out of” and was “connected with” the performance of Gramercy’s work, thereby triggering its indemnity obligation.  The trial court agreed and granted 33 Bond GC, Bond LLC and Cornerstone summary judgment on their third-party claims against Gramercy for contractual indemnification.   

Joseph Cianciulli v. Urban Foundation/Engineering, LLC, et al., Index No. 707630/2020 (Queens Co. Sup. Ct. Nov. 24, 2020)  

On December 17, Stephen M. Cohen and John V. Fabiani lectured at a virtual seminar for Berkshire Hathaway Specialty Insurance entitled “An Overview of New York Labor Law §§200, 240(1) and 241(6)”.

Court Dismisses Third-Party Action in its Entirety Against Our Mechanical Contractor Client in Case Involving Plaintiff’s Fall From a Ladder

In a decision dated November 18, 2020, the Honorable Carol R. Edmead of the New York County Supreme Court granted our client third-party defendant Fresh Meadow Chiller Services, LLC’s (‘Fresh Meadow”) motion for summary judgment dismissing the third-party action by defendant New York Society for the Relief of the Ruptured and Crippled, Maintaining the Hospital for Special Surgery (“HSS”), including those claims for contractual and common law indemnification, contribution and breach of contract for the failure to procure insurance. HSS owns a hospital located at 535 East 70th Street, New York, New York. Through a Preventative Maintenance Agreement HSS engaged Fresh Meadow to provide maintenance of two large industrial chillers which provided cold water to the MRI machines in the hospital. Plaintiff, a technician employed by Fresh Meadow, alleges that he slipped and fell while descending a ladder from which he cleaned the chiller coils. The Court held that Fresh Meadow demonstrated its entitlement to summary judgment on HSS’s common law indemnification and contribution claims against it because plaintiff did not sustain a grave injury within the meaning of Workers’ Compensation Law Section 11. With regard to HSS’s breach of contract claim against Fresh Meadow, the Court held that the limitation of liability provision of the Preventative Maintenance Agreement did not confer an obligation by Fresh Meadow to procure insurance for HSS’s benefit, but in any event, the policy submitted by Fresh Meadow showed that it procured the insurance it was required to procure. The Court held that HSS failed to demonstrate entitlement to summary judgment on its contractual indemnity claim against Fresh Meadow because there was no language in the Preventative Maintenance Agreement which evinced a clear intent to indemnify HSS. In sum, the Court dismissed the third-party action against Fresh Meadow in its entirety as a matter of law.

Louis Mazzarisi v. New York Society for the Relief of the Ruptured and Crippled, Maintaining the Hospital for Special Surgery, Index No. 155022/2016 (N.Y. Co. Sup. Ct. Nov. 18, 2020)

On July 12, Thomas J. Hall lectured at a virtual seminar for Travelers Insurance Company entitled “Evaluating and Defending Loss of Earnings Claims By Construction Workers”.

Partner John Fabiani and Associate Jordan Meisner Obtain Summary Judgment on Appeal Dismissing Case as a Matter of Law

In a decision dated October 28, 2020, the Appellate Division, Second Department reversed denial of our summary judgment motion dismissing the complaint and all cross-claims as to our client, Vixxo Corporation.  The plaintiff was injured when a newly installed automatic door closed on her while she was exiting a Michael’s Store in Brooklyn, New York.  Vixxo had a master service agreement with Michael’s but was not notified of the broken door until after the accident, at which time it arranged to have the door repaired.  The Supreme Court denied our motion as premature.  The Second Department reversed, finding that Vixxo had demonstrated its prima facie entitlement to judgment by demonstrating, through its submissions, that it owed no duty of care to the plaintiff.  The parties opposing the motion failed to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition were exclusively within our client’s knowledge and control.  The complaint and all cross-claims were dismissed.

Arlene Braddy v. Related Companies, et al., 187 A.D.3d 1120, 131 N.Y.S.3d 239 (2d Dep’t 2020)

Court Dismisses Labor Law Complaint In Its Entirety Against Defendants Where Plaintiff Was Injured When He Fell Into An 18 Inch Elevator Pit While Pulling a Dolly

In a decision dated May 14, 2020, the Hon. Margaret A. Chan of the New York County Supreme Court dismissed the plaintiff’s entire complaint, which alleged causes of action pursuant to Labor Law §§240(1), 241(6), 200 and for common law negligence against our clients, NYY Steak Manhattan, LLC (“NYY Steak”) and Plaza Construction Corp. (“Plaza”). The plaintiff, a steamfitter, employed by Day & Nite Refrigeration, alleged that he sustained personal injuries when he was transporting a refrigeration unit at a renovation project. NYY Steak was the lessee of the property and it retained Plaza as the construction manager for the project. The plaintiff alleged that he was walking backwards while pulling a dolly which held a refrigeration unit, as his co-worker was pushing the cart. While doing so, the plaintiff stepped on a piece of wood and then fell into an elevator pit that was 18 inches deep. The Court dismissed the plaintiff’s Labor Law §240(1) claim. It held that this section did not apply to the plaintiff’s fall into an 18 inch hole as he was performing his assigned task of delivering a refrigeration unit while pushing a cart. The Court also dismissed the plaintiff’s §241(6) claim on the ground that none of the Industrial Code Rules alleged by the plaintiff applied. Additionally, the Court dismissed the plaintiff’s Labor Law §200 and common law negligence claims based on the absence of any evidence that NYY Steak or Plaza supervised or controlled the injury-producing work or that it created the alleged dangerous condition or had notice of it prior to the accident.

Kevin McGonigal v. NYY Steak Manhattan, LLC, et al., Index No. 158327/2013 (N.Y. Co. Sup. Ct. May 14, 2020)

On July 9, Stephen M. Cohen and Thomas J. Hall lectured at a virtual seminar for Travelers Insurance Company entitled “Defending New York Labor Law Claims”.

Court Dismisses Plaintiff’s Complaint in Its Entirety As to Defendants in Construction Accident Case Involving Plaintiff Who Was Struck By Perimeter Fence

In a decision dated May 29, 2020, the Hon. James Auguste of the New York County Supreme Court granted our client, the Metropolitan Transportation Authority (“MTA”), summary judgment dismissing the plaintiff’s entire complaint as against it.  The plaintiff laborer was employed by the general contractor, non-party Plaza Construction (“Plaza”), on the construction of the Fulton Street Transit Center in Manhattan.  The alleged accident occurred following the delivery of a dumpster container to the construction site.  The plaintiff was attempting to close one of two gates that opened outward from a perimeter fence when a gust of wind allegedly blew the other gate into the plaintiff’s body, causing him to make contact with a dumpster container.  The MTA sought summary judgment dismissing the plaintiff’s causes of action pursuant to Labor Law §§240(1), 241(6) and 200 and for common-law negligence, as well as dismissal of the claim for damages based on alleged hearing loss on the grounds that it was untimely due to the plaintiff’s failure to include this allegation in the Notice of Claim.  The plaintiff did not oppose dismissal of the §§240(1) and 241(6) claims or the damages claim for alleged hearing loss.  With respect to the Labor Law §200 and common-law negligence claims, the Court held that the MTA established as a matter of law that it neither created nor had actual or constructive notice of the alleged condition of the gate and the MTA did not have any supervisory control over this area or the plaintiff’s work.

James Stack v. Metropolitan Transportation Authority, et al., Index No. 157479/2014 (N.Y. Co. Sup. Ct., May 29, 2020)

Court Dismisses Labor Law Complaint In Its Entirety As To Defendants Where Plaintiff Was Injured By A Sawzall While Lying On Ductwork Attached To The Ceiling

In a decision dated May 15, 2020, Justice Lucindo Suarez of Bronx County Supreme Court granted our clients, 1515 Broadway Owner LLC (“1515 Broadway”) and Viacom, Inc. (“Viacom”) summary judgment dismissing the plaintiff’s complaint in its entirety as a matter of law. The plaintiff, a laborer employed by non-party, J.T. Magen & Company, Inc. (“J.T. Magen”), alleged personal injuries sustained when, while lying on ductwork that was attached to the ceiling in order to remove fireproofing material while using a Sawzall, the Sawzall came into contact with an object hidden underneath the fireproofing causing it to kick back and injure the plaintiff. Defendant 1515 Broadway owned the building where the accident occurred and Viacom, a tenant in the building, contracted for J.T. Magen to perform the construction work. Recognizing that liability under Labor Law §240(1) requires proof that the plaintiff’s injury was caused by an elevation-related risk such as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured, the Court held that the plaintiff’s Labor Law §240(1) claim failed as a matter of law because his accident did not result from an elevation-related risk. The Court rejected the plaintiff’s argument that triable issues of fact existed as to whether the defendants failed to provide him with the proper scaffold to perform his work because he failed to show that his injuries were caused by a scaffold’s failure to protect him against an elevation-related risk. Additionally, the court granted 1515 Broadway’s and Viacom’s motion to dismiss the plaintiff’s Labor Law §241(6) claim that was predicted on Industrial Code Rules 23-5.13(a)-(d) and 23-5.18, both of which pertained to the safety of scaffolds. In dismissing the §241(6) cause of action, the Court held that the defendants established as a matter of law that the aforementioned Industrial Code Rules were inapplicable and therefore the plaintiff’s injuries were not proximately caused by a violation of them. The plaintiff did not oppose the defendants’ motion to dismiss his Labor Law §200 and common-law negligence claims.

Frank D’Erasmo v. 1515 Broadway Owner LLC and Viacom, Inc., Index No.: 22924/2016 (Bronx Co. Sup. Ct. May 15, 2020)