Firm News

Court Dismisses Claims Against Co-General Contractor Which Lacked Control Over Accident Location and Grants Contractual Indemnification Claim Against the Plaintiff’s Employer

In a decision dated February 6, 2020, the Hon. Barbara Jaffe granted our client, The Pike Company, Inc., summary judgment dismissing the plaintiff’s causes of action for common law negligence and pursuant to Labor Law §§200 and 240(1) and as well as contractual indemnification against the plaintiff’s employer, United Iron. Judge Jaffe also granted the other defendants’ summary judgment motions and dismissed the complaint, including the plaintiff’s Labor Law §241(6) claim. The plaintiff steelworker was injured during the construction of two buildings on the Regeneron Pharmaceuticals complex in Mount Pleasant, New York. There were two general contractors on this project – Moriarty Contracting for the exterior work and Pike for the interior work. United Iron was a subcontractor to both Moriarty and Pike. The accident occurred at the beginning of the work day as the plaintiff was walking to United Iron’s trailer, which was located on a trailer park under Moriarty’s jurisdiction; the plaintiff intended to perform work for Pike that day. The plaintiff followed his foreman as they walked from the paved parking area and roadway down a “moderately”-sloped dirt path toward the trailer. The dirt path was worn down from use and the plaintiff testified that he was not aware of the other entrance to the trailer. Moriarty’s witness testified that there was an alternate entrance to the trailer which was on level ground, but there were times when this path was covered in water and mud, which the witness conceded was an unsafe condition. The plaintiff had slipped on this dirt path a few times before his accident, but he never complained to Pike about it. The trailer was located off of a main roadway on the project which Pike personnel used to get to their trailer park. During oral argument of the motion, the plaintiff withdrew his Labor Law §240(1) claim. With respect to the plaintiff’s Labor Law §200 and common-law negligence claims, the Court held that Pike established that it did not create or have actual or constructive notice of the conditions around the trailer and Pike did not have any control over this area. United Iron opposed Pike’s motion for contractual indemnity on the grounds that there were questions of fact as to Pike’s negligence. Inasmuch as Pike was not negligent, the Court granted Pike judgment on its contractual indemnity claim as against United Iron.

Joseph Ryan v. BMR-Landmark at Eastview LLC, et al., Index No. 150878/2015 (N.Y. Co. Sup. Ct., Feb. 6, 2020)

Contractor Entitled to Dismissal of Labor Law Claim Premised Upon Industrial Code Rule 23-1.7(d) as Cited Rule Held Inapplicable

In a decision dated January 13, 2020, the Hon. Carol Edmead granted our client Skanska USA Building Inc. summary judgment dismissing plaintiff’s Labor Law §241(6) claim premised upon Industrial Code Rule 23-1.7(d) [slipping hazards] as a matter of law. The plaintiff was injured during the construction project for the City University of New York (“CUNY”) located at 85 Nicholas Avenue in Manhattan. The project included construction of CUNY’s Advanced Science Research Center, and Skanska was the general contractor. Plaintiff was employed by non-party Tower Installation on the day of his accident, and was performing window installation on one of the newly erected buildings on the project. As he was walking to get a box of caulk from the doorway of a nearby building, he alleges that he slipped and fell on snow and ice.  The court found Skanska made a prima facie showing of entitlement to judgment submitting plaintiff’s own description of the area where the accident occurred as an open area between two buildings that were under construction. The plaintiff did not cite case law supporting his position there was a fact question if the area in question was a walkway for Rule 23-1.7(d) purposes. The court found plaintiff’s argument that the Rule’s language required all walkways be kept free from snow and ice that may cause “slippery footing” insufficient to raise a fact issue warranting denial of summary judgment where courts previously held that open areas, such as here, were not covered by Rule 23-1.7(d). In light of the foregoing, Skanska’s motion for partial summary judgment dismissing plaintiff’s §241(6) cause of action premised upon Industrial Code Rule 23-1.7(d) was granted as a matter of law.

Anthony Meringolo v. Turner Construction Co. et al., Index No. 158572/2014 (N.Y. Co. Sup. Ct., Jan. 13, 2020)

Court Dismisses Complaint As to Defendant Contractor In Action Involving Motorcycle Which Allegedly Struck a Flattened Orange Construction Barrel in Roadway

In a decision dated December 27, 2019, the Hon. Orlando Marrazzo, Jr. granted our client CCA Civil-Halmar International, LLC summary judgment, dismissing the plaintiff’s complaint in its entirety as a matter of law. The plaintiff commenced this action alleging personal injuries resulting from an accident that occurred while he was operating a motorcycle eastbound just past midnight on the Cross Bronx Expressway. At the time of the accident, the plaintiff was about 200 feet east of the 1B Major Deegan Expressway Exit and changing lanes when his motorcycle allegedly struck a flattened orange construction barrel in the roadway causing him to fall off his motorcycle. After a review of the facts in the light most favorable to the plaintiff, the Court determined that the “defendant implemented, deployed and maintained the work zone traffic control plant in accordance with the State of New York’s plans, approvals, and specifications as set forth in the contract between the defendant and New York State.” The Court further opined that the “plaintiff failed to demonstrate that the plans and specifications upon which the defendant relied and implemented were defective.” In light of the foregoing, the Court granted CCA summary judgment dismissing the plaintiff’s complaint as against it as a matter of law.

Elias Corniel v. CCA Civil-Halmar International, LLC, Index No. 100670/2015 (Richmond Co. Sup. Ct., Dec. 27, 2019)

Court Dismisses Complaint and Third-Party Contractual Indemnification Action Against Employer In Accident Involving Electrical Worker Whose Admitted Mistake Caused Arc Fault

In a decision dated January 7, 2020, the Hon. Thomas Feinman granted our client Haugland Energy Group, LLC, a third-party defendant, summary judgment dismissing the third-party complaint against it. The Court also granted the cross-motion of defendants/third-party plaintiffs, LIPA and PSEG, for dismissal of the plaintiff’s complaint, which asserted claims pursuant to Labor Law §§241(6) and 200 and for common-law negligence. The plaintiff, an experienced journeyman lineman employed by Haugland, was working on energized overhead electrical lines when he mistakenly crossed two energized phases of wire, producing an arc fault and a “fire ball.” Although the plaintiff acknowledged that it was his erroneous action in crossing phases that caused the arc fault, the plaintiff alleged that a defective condition in PSEG’s breakers and/or relays at the substation supplying power to the electrical pole caused the prolonged “fire ball” which resulted in his injuries. Haugland submitted the affidavit of a professional engineer who established that the cited Industrial Code provisions did not apply to the facts of the case and were not violated, and that Haugland was not independently at fault so as to trigger its contractual indemnity obligations to LIPA and PSEG. The Court held that the affidavit of Haugland’s expert engineer established that the plaintiff was the sole cause of the accident inasmuch as he was well trained, had extensive experience performing this type of work, appreciated the hazards of crossing phases, was provided with the appropriate safety equipment, the work was performed in accordance with Haugland’s health and safety plan and the other members of the plaintiff’s crew were properly trained and qualified to support the plaintiff and provided adequate supervision. The Court held that Haugland’s evidence established that the Industrial Code provisions (pertaining to warnings and protection against electrical contact/shock) did not apply to this accident since the plaintiff did not sustain electrical shock. The Court declined to consider the affidavit of the plaintiff’s expert witness, a lineman foreman, on the grounds that the plaintiff failed to prove that this witness had the requisite education, training or experience with respect to the circuit breaker and relay settings at issue to render a reliable opinion. The Court also noted that the plaintiff’s expert witness failed to rebut the opinion of Haugland’s expert engineer that Haugland acted in compliance with all applicable rules, statutes and regulations. On the basis of the foregoing, the Court granted Haugland’s motion to dismiss the third-party complaint and the cross-motion of LIPA and PSEG to dismiss the plaintiff’s complaint.

William Wittenberg v. Long Island Power Authority, et al., Index No. 611711/2017 (Nassau Co., Sup. Ct., Jan. 7, 2020)

In Memoriam: Richard Schmedake (1965-2019)- The partners and staff of Fabiani, Cohen & Hall are saddened by the death of their colleague who was with the firm since 2017. He was a skilled attorney who began his career as an assistant district attorney for many years before transitioning to civil litigation where he specialized in general liability defense, including construction law and insurance coverage. He was a wonderful person and we will truly miss him. Our hearts go out to his family at this difficult time.

On December 18, Stephen M. Cohen lectured at a seminar for Tishman Construction Company’s Waldorf Astoria Project entitled “Best Practices for Post-Accident Investigations”, in New York, New York.

On December 13, Thomas J. Hall lectured at a seminar for Travelers Insurance Company entitled “Strategies for the Effective Defense of Traumatic Brain Injury Cases,” in New York, New York.

First Department Affirms Supreme Court’s Decision Dismissing §240(1) Claim As to Project Manager Who Was Not Deemed to Be a Statutory Agent for Purposes of the Labor Law

In a decision dated November 21, 2019, the Appellate Division, First Department unanimously affirmed the decision of the Supreme Court, New York County (Hon. Erika M. Edwards) which granted our client, URS Corporation- New York, summary judgment dismissing all of the plaintiff’s claims as against URS and denying the plaintiff’s motion for summary judgment on his cause of action pursuant to Labor Law §240(1). The plaintiff, a Local 79 laborer employed by Dragados/Judlau, A Joint Venture was allegedly injured on November 21, 2011, while he was working in Wellway 4 of the Madison Yard on the Manhattan side of the East Side Access Project. At the time of the accident, the shackle on a chipping gun failed allowing the pressurized air hose to break free and strike the plaintiff, allegedly knocking him to the ground and causing him to roll down a 30 degree decline approximately five feet. The First Department held that the record demonstrated “conclusively that the defendant URS Corporation – New York [the only defendant involved in the appeal; the other defendants having been awarded summary judgment dismissing the action as against them], the project manager on the construction site where plaintiff was injured, did not have the authority to supervise and control the injury-producing work and was therefore not a statutory agent of the project owner or general contractor for purposes of the Labor Law (citations omitted).”

Francis Coleman v. URS Corporation, et al., 177 A.D.3d 529, 110 N.Y.S.3d 845 (1st Dep’t 2019)

Court Dismisses Complaint As to Defendant Contractor In Action Involving Plaintiff Who Tripped and Fell On Sidewalk Area Abutting Tree Pit

In a decision dated September 5, 2019, the Hon. Barbara Jaffe granted our client E.W. Howell Co., LLC summary judgment, dismissing the plaintiff’s complaint as a matter of law. The plaintiff commenced this action alleging personal injuries as a result of a trip and fall on the sidewalk in front of the Brearley School Project, located at 580 East 83rd Street, New York, New York. The plaintiff claimed that he fell when his left ankle “buckled” as he was walking on the sidewalk next to the Brearley School Project. More specifically, the plaintiff claimed that his accident occurred at the area where the sidewalk met a tree pit, causing him to fall. Based on the testimony of Howell’s witness, Howell was involved in the then-ongoing construction project at the project site, but it did not perform any work at or in the tree pit, or the sidewalk next to it on East 83rd Street, where the plaintiff stated his accident happened; nor did any subcontractor perform work at the accident location. The only obligation Howell undertook concerning the sidewalks adjacent to the school was to produce a site safety plan indicating the location of sidewalk bridges. The Court determined that Howell demonstrated neither Howell nor their subcontractors performed work on the sidewalk or created the subject condition, and that plaintiff’s pure speculation that Howell performed work in that area was insufficient to raise a triable issue of fact. In light of the foregoing, all claims against Howell were dismissed as a matter of law.

Steven Anderson v. E.W. Howell Co., LLC, Index No. 152012/2018 (N.Y. Co. Sup. Ct., Sept. 5, 2019)

Congratulations to Bryan F. Tiggs who was awarded a defense verdict in the case of Lina Degrazia v. Sicilia Real Estate, LLC involving a plaintiff who allegedly tripped and fell on steps. The case was tried in Bronx County Supreme Court.

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