Firm News

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)

Second Department Affirms Jury Verdict in Favor of Defendants Which Concluded Plaintiff’s Actions Were Sole Proximate Cause of His Accident for Purposes of Labor Law §240(1)

In a decision dated March 23, 2022, the Appellate Division, Second Department affirmed the Supreme Court’s denial of plaintiff’s motion to set aside the jury verdict on the issue of liability on his Labor Law §240(1) cause of action and for judgment as a matter of law in his favor on that cause of action. The plaintiff, employed as a job-site superintendent by the general contractor on a construction project, was allegedly injured when a temporary barricade fell over on top of him. The plaintiff alleged a violation of Labor Law §240(1) against, among others, our clients, FC Yonkers Associates, LLC and Express, LLC, the property owner and commercial tenant, respectively.  Following a jury trial, the jury found in favor of the defendants, concluding that plaintiff’s actions were the sole proximate cause of his accident. There was evidence that  shortly after the accident, the plaintiff reportedly told his employer that he removed the supports for the barricade causing it to fall over. In light of the evidence presented at trial, the Second Department affirmed the jury verdict holding that “there was a valid line of reasoning and permissible inferences which could have led a rational jury to conclude that it was [plaintiff’s] own conduct in removing the bracing… rather than any violation of Labor Law §240(1), that was the sole proximate cause of his alleged injuries.  

Scott Petersen et al. v. Forest City Ratner Companies, LLC et al., 203 A.D.3d 1093, 162 N.Y.S.3d 785 (2d Dep’t 2022)

Court Dismisses Complaint in its Entirety as to Defendant Housing Corporation

In a decision dated November 23, 2021, Hon. Frederick Sampson dismissed the plaintiff’s complaint as to our client, Forest Hills Garden Corporation. We secured dismissal of plaintiff’s complaint in a summary judgment motion made immediately after answering and before conducting any discovery. By making the motion immediately after answering, we saved our client the expense of conducting discovery in this multi-party litigation. Plaintiff, a tenant in a privately owned home in Forest Hills Gardens was injured when she tripped and fell in a hole on the lawn in front of her home. She sued the homeowner as well as Forest Hills Gardens Corporation and several contractors. Relying on the By-Laws and Architectural Guidelines of the Forest Hills Gardens Corporation, we established that it had no duty to maintain privately owned property in Forest Hills Gardens.

Jaime Hochhauser v. Tortoroli and Tortorli, Inc. et al., Index No. 702367/2019 (Sup. Ct. Queens Co., Nov. 23, 2021)

Court Dismisses Negligence Claim and Awards Contractual Indemnity to Provider of Man-lift in Action Brought By Railroad Employee Plaintiff Who Was Injured When Train Struck a Man-lift that Stopped on Railroad Tracks

In a decision dated October 26, 2021, the Honorable Julian D. Schreibman of Ulster County Supreme Court granted the motion for summary judgment brought by our client, Kiewit Constructors, Inc. (“Kiewit”), seeking dismissal of the plaintiff’s negligence claim against it and summary judgment on its cross-claim against the defendant, Steelways, Inc. (“Steelways”), for contractual indemnification.  The plaintiff, an employee of the defendant, CSX Transportation (“CSXT”), alleged that on March 7, 2017, he sustained personal injuries when a CSXT train struck a man-lift which had inexplicably stopped on the railroad tracks at a public crossing, causing the man-lift and a derailed train car to strike a piece of track maintenance equipment in which the plaintiff was sitting.  Kiewit had provided the man-lift to Steelways to use to wash steel pipes pursuant to their contract.  The accident occurred at the end of the work day, when one of Steelways’ employees attempted to drive the man-lift across the tracks to Kiewit’s facilities for overnight storage while other Steelways employees flagged traffic.  The plaintiff alleged that Kiewit was negligent in providing a defective man-lift, failing to properly train and supervise Steelways’ employees and failing to operate the CSXT train at the proper speed.  To determine whether Kiewit was entitled to summary judgment, the Court first considered whether Kiewit owed the plaintiff a duty of care, which turned on whether Kiewit owed the plaintiff a duty to control CSXT’s and Steelways’ employee’s conduct.  

The Court agreed with Kiewit that it did not owe the plaintiff a duty to control CSXT’s conduct for the plaintiff’s benefit because Kiewit did not have any relationship with CSXT.  The Court also agreed with Kiewit that it was not responsible for Steelways’ employee’s alleged failure to properly operate the man-lift while crossing the tracks because Steelways was an independent contractor.  Kiewit’s contract with Steelways expressly provided that Steelways was to provide all supervision with respect to its work of power washing steel pipes for Kiewit.  The Court rejected Steelways’ argument that a contract provision requiring Steelways to perform the work “in a prompt manner as directed by Kiewit” created an issue of fact. The Court determined that the provision merely reflected Kiewit’s “general supervisory powers” over Steelways.  The Court also rejected Steelways’ argument that the contract should be construed against Kiewit, the drafter of the agreement, because the deposition testimony of Steelways’ president that he read every contract, including the contract at issue, showed he was a sophisticated party.  The Court was also unpersuaded by Steelways’ argument that Kiewit exercised supervision and control over the work because Kiewit had provided some initial training to Steelways’ employees regarding how to use the man-lift. According to the Court, this kind of activity only demonstrated that Kiewit exercised general supervisory control over the work.  The  Court also agreed plaintiff had failed to refute Kiewit’s prima facie showing that the man-lift was not defective.  Kiewit established its prima facie burden based on the evidence that its foreman had inspected the man-lift five days before the accident, that Steelways had inspected it on the morning of the accident and that Steelways’ employees had operated the man-lift on the day of the accident without incident.  The Court found that Steelways’ contentions that Kiewit failed to establish the man-lift was not in use in the five days between Kiewit’s safety inspection and the date of the accident, and that Steelways had not shown its inspection form was approved by the man-lift’s manufacturer were speculative and insufficient to create a triable issue of fact as to whether the man-lift Kiewit provided was defective. 

The Court also granted Kiewit’s motion for summary judgment on its cross-claim for contractual indemnification against Steelways because the accident “ar[ose] out of” Steelways’ work under the indemnity provision.  The Court rejected Steelways’ argument that the contract was void based on its president’s testimony that a person whom he could only identify as someone possibly named  “Dave” from Kiewit had orally told him that Kiewit would be responsible for supervising Steelways’ employees. The Court determined this testimony was insufficient to avoid summary judgment.    

Corey Kiernan v. CSX Transportation, Inc. et al., Index No. EF2017-2094 (Sup. Ct. Ulster Co., Oct. 26, 2021)