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)