First Department Affirms Dismissal of Plaintiff’s Complaint As Against City Defendants in Construction Accident Case

In a decision dated May 7, 2019, the Appellate Division, First Department unanimously affirmed the decision of the Supreme Court, New York County (Hon. Gerald Lebovits) which granted our clients, the City of New York and the New York City Department of Environmental Protection, summary judgment dismissing all of the plaintiff’s claims as against the City and the DEP and denying the plaintiff’s motion for summary judgment on his causes of action pursuant to Labor Law §§240(1) and 241(6). The plaintiff, a Local 638 steamfitter employed by Skanska Mechanical and Structural, Inc. was allegedly struck by an inadequately secured roller hanger pipe saddle in the neck, which fell from above. The incident allegedly occurred on October 2, 2011, while the plaintiff was working at the North River Sewage Treatment Plant located in Manhattan. The First Department held that Labor Law §240(1) did not apply to the circumstances of this accident “because the pipe saddle that detached from an overhead ceiling pipe assembly and struck plaintiff was not an object that required securing for the purposes of the undertaking; rather it was a permanent part of the structure.” Regarding the plaintiff’s Labor Law §241(6) claim, the First Department held that neither of the pleaded violations of the Industrial Code applied. Rule 23-1.7(a)(1) was held to be inapplicable “because plaintiff was not injured by debris that may have been falling from a ceiling demolition, but instead, from a fixture of the building which dislodged.” Rule 23-3.2(b) was also held to be “inapplicable because it pertains to protecting the stability of adjacent structures, not the stability of the building or structure allegedly being demolished.” Regarding the plaintiff’s causes of action for common law negligence and violation of Labor Law §200, the First Department held that these claims were properly dismissed because “[d]efendants made a prima facie showing of lack of notice of any problem with pipe saddles through the testimony of the construction manager’s representative who regularly walked the site and saw no evidence of the alleged condition, and the evidence that there were no complaints or prior similar incidents at the property.” The Court also determined that there was no constructive notice to the defendants “because the defective pipe saddle was latent, such that the construction manager’s representative’s inspections would not have alerted it to the potential hazard of the object becoming dislodged and falling.”

Michael Djuric v. City of New York et al., 172 A.D.3d 456, 100 N.Y.S.3d 17 (1st Dep’t 2019)

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