In two decisions dated October 25, 2018, involving two related cases arising from the same construction accident, the Hon. David T. Reilly granted our clients, Whole Foods Market Group, Inc. and Construction Management & Builders, Inc., summary judgment dismissing the plaintiffs’ Labor Law §200 and common law negligence claims as well as all counterclaims against them. The Court awarded our clients summary judgment on their contractual indemnity claims against the third-party defendant. Additionally, the Court denied the plaintiffs’ cross-motions for summary judgment on their Labor Law §240(1) claims. At the time of the accident, the plaintiffs were performing sheet-metal deck installation work as employees of the third-party defendant, Piermount Iron Works, Inc., who instructed and directed the plaintiffs’ work and provided them with the tools and equipment to perform the sheet-metal decking work. Piermount erected a safety cable on the second floor of the structure where the decking was being installed and provided the plaintiffs with safety harnesses to attach to the safety line. Plaintiffs were going to use a torch to cut a notch into a piece of decking to install it into place. As the piece of decking was about to be cut, the decking collapsed.

The two related cases were consolidated and separate summary judgment motions were made in each case. We moved to dismiss the plaintiffs’ Labor Law §200 and common law negligence claims against the defendants because the accident arose out of the means and methods by which the plaintiffs were performing their work for their employer, Piermount. The Court agreed and dismissed the §200 and common law negligence claims against our clients in each case. Moreover, the Court dismissed all counterclaims against our clients because it determined they were not negligent as a matter of law, did not breach any contractual agreement to procure insurance and were not contractually obligated to indemnify any party. Our clients also moved for summary judgment on their contractual indemnity claims against Piermount based on the contract which provided for indemnification for bodily injury to Piermount employees “arising out of, resulting from, connected to or relating to the performance or non-performance of the Work.” In both cases, the Court granted summary judgment on our clients’ contractual indemnity claims against Piermount on the grounds that the plaintiffs’ injuries arose out of or were related to the performance of their work for Piermount. Furthermore, both plaintiffs served improper cross-motions seeking summary judgment on their Labor Law §240(1) claims on the grounds that they were not provided with adequate safety devices to perform their work at an elevation. However, because the plaintiffs filed their respective motions after the 120-day post-note of issue deadline, we argued that the plaintiffs’ motions only pertaining to Labor Law §240(1), which was not even addressed in our clients’ timely summary judgment motions, were untimely without any justification or excuse and should not be considered. The Court agreed and denied the plaintiffs’ untimely motions seeking summary judgment on their §240(1) claims. Accordingly, our clients’ motions were granted in their entirety and the plaintiffs’ cross-motions were denied in their entirety.

Roger Schwarting v. Whole Foods et al., Index No. 003756/14 (Suffolk Co. Sup. Ct., Oct. 25, 2018);

Donald Swital v. Whole Foods et al., Index No. 003757/14 (Suffolk Co. Sup. Ct., Oct. 25, 2018)