In a decision dated December 12, 2011, Justice Mark Friedlander granted defendant Tully Construction Co., Inc.’s (“Tully”) pre-answer motion for summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violation of Labor Law §241(6) as against Tully. The plaintiff alleged that he sustained personal injuries on May 20, 2009, while working at a construction project at the Croton Water Filtration Plant in Bronx, New York. At the time of the accident, the plaintiff was employed by Skanska USA Civil Northeast, Inc. formerly known as Slattery Skanska Inc. (“Skanska”). Skanska had entered into a joint venture agreement, dated September 6, 2006, with Gottlieb Skanska, Inc. (now known as Skanska Mechanical and Structural Inc.) and Tully, forming the Skanska/Tully Joint Venture (“Joint Venture”), for the sole purpose of submitting a bid for, and obtaining a contract for the performance of work for the New York City Department of Environmental Protection project at the Croton Water Filtration Plant. Following the plaintiff’s accident, he filed for and accepted workers’ compensation benefits from the Joint Venture. The Court held that the documentation submitted by Tully unequivocally established that it was a part of the Joint Venture pertaining to the construction at the Croton Water Filtration Plant. The Court further cited to Appellate Division, First Department precedent holding that: “Where there is one or more employer in a joint venture, an employee working for one employer is considered an employee of the other employers in the joint venture.” Fallone v. Misericordia Hosp., 23 A.D.2d 222, 289 (1st Dep’t 1965). In light of the foregoing law and facts, the Court held that plaintiff’s complaint against defendant Tully was barred by the exclusivity provisions of the Workers’ Compensation law.
Gomes v. Tully Construction Co., Inc., Index No.: 303223/11 (Bronx Co. Sup. Ct., December 12, 2011)