Firm News

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 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)


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, — N.Y.S.3d —- (1st Dep’t 2022)


Court Dismisses All Claims as to Contractor in Fire Loss Subrogation Action

In a decision dated June 9, 2022, the Hon. Diccia T. Pineda-Kirwan of Nassau County Supreme Court granted the motion for summary judgment brought by our client, Haugland Energy Group, LLC (“Haugland”), seeking dismissal of the plaintiff’s negligence claim against it and dismissal of all of co-defendant PSEG Long Island, LLC’s (“PSEG”) cross-claims. This subrogation action arises out of a fire that occurred on November 25, 2018 at a residence in East Hampton, New York. It is undisputed that the fire was caused by an energized neutral on the utility lines near the home which caused an electrical overload which in turn caused the wiring in the basement of the home to ignite. Prior to the date of the fire, PSEG had hired Haugland to perform storm hardening work across Long Island, including on the circuit servicing the home of plaintiff’s subrogee. Haugland last performed work on the pole at issue 16 days before the fire. The plaintiff alleged that Haugland either negligently performed its work, which lead the insulation around the neutral to break, or that it negligently failed to detect that the insulation was deteriorated. PSEG alleged that it was entitled to either common law or contractual indemnity from Haugland since Haugland deviated from prudent utility practices by failing to replace the damaged portion of wire. PSEG also claimed that it was entitled to coverage as an additional insured under Haugland’s insurance policies pursuant to the terms of the relevant contract.

The Court agreed with our argument that Haugland, having contracted with PSEG, did not owe the plaintiff’s subrogor a duty of care. Further, the Court found that, even if Haugland did owe the plaintiff a duty of care, Haugland could not be held liable for the fire inasmuch as any argument that Haugland was negligent was purely speculative. In terms of PSEG’s cross-claims, the Court agreed with our argument that Haugland did not owe PSEG indemnification either pursuant to the terms of the contract or under the common law given that Haugland was not negligent. Further, the Court rejected PSEG’s arguments with respect to ‘prudent utility practices’ given that Haugland was not hired to inspect the utility lines and performed its work pursuant to the plans generated by PSEG.

Nat’l Gen. Ins. Co. a/s/o Kevin Bishop v. PSEG Long Island, LLC et al., Index No. 615442/2019 (Sup. Ct. Nassau Co., June 9, 2022)


Second 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 Ladder

In a decision dated April 27, 2022, the Appellate Division, Second Department reversed the Order of the Supreme Court, Queens County and denied plaintiff’s motion for summary judgment on his Labor Law §240(1) cause of action against our clients, City of New York, New York City Department of Transportation, New York City School Construction Authority and the Comptroller of the City of New York.  The plaintiff, a roofer employed by non-party, Kel-Tech Construction, allegedly fell from an extension ladder at a public high school while renovating a bulkhead on the roof.  The plaintiff moved for summary judgment on liability pursuant to Labor Law §240(1).  On appeal, the Second Department determined that the plaintiff established prima facie liability under Labor Law §240(1) by submitting evidence demonstrating that he was provided with an extension ladder that was secured only on the right side and, as he began to descend the ladder from the roof of the bulkhead to the roof of the school, the ladder shifted to the right and backwards, causing him to fall approximately 12 to 13 feet onto the roof of the school. In opposition, the defendants raised a triable issue of fact regarding whether the ladder shifted to the right and backwards, as the plaintiff testified, or whether the plaintiff’s own actions were the sole proximate cause of the accident. The defendants submitted an affidavit from the plaintiff’s supervisor, who averred that the plaintiff had told him, just after the accident occurred while he was still on the roof, that he had lost his balance as he descended the ladder and jumped off the ladder. In reaching its decision to reverse the lower court and deny summary judgment to the plaintiff, the Second Department found that different versions of the accident given by the plaintiff created triable issues of fact that required a denial of the motion, including a triable issue of fact as to the plaintiff’s credibility.

Andrezj Jurski v. City of New York et al., 204 A.D.3d 983, 165 N.Y.S.3d 371 (2d Dep’t 2022)