Firm News

Appellate Division Bars Plaintiff from Amending Complaint to Assert Claim for Punitive Damages Against Contractor

In a decision dated December 14, 2017, the Appellate Division, First Department unanimously reversed a Supreme Court, Bronx County order that granted the plaintiff’s motion to amend his complaint to include punitive damages against our client, Grace Industries, LLC. The plaintiff was involved in a motor vehicle accident on a highway that was in the process of being resurfaced by our client. After some discovery, the lower court allowed the plaintiff to amend his complaint to include a claim for punitive damages as against Grace. The basis for the plaintiff’s claim for punitive damages, among other things, was Grace’s off-road storage of a paver and its failure to fill in a trench on the side of the road. In reversing the lower court’s decision, the First Department determined that the conduct put forth by the plaintiff, if proven, was insufficient for the imposition of punitive damages, because it could not be viewed as a conscious and deliberate disregard of the rights of others. Accordingly, leave to amend the plaintiff’s complaint was denied.
Britz v. Grace Industries, LLC, et al., — A.D.3d —, 65 N.Y.S.3d 453 (1st Dep’t 2017)


Court of Appeals Reverses Lower Court Decisions and Finds Issues of Fact Regarding Plaintiff’s Labor Law §240(1) Claim

In a decision dated September 5, 2017, the Court of Appeals reversed the Appellate Division, First Department’s decision and order which had affirmed the lower court’s decision granting plaintiff summary judgment on his cause of action pursuant to Labor Law §240(1). The plaintiff, an employee of non-party, Pinnacle Contracting, claimed that he was injured when he slipped on grease while walking down an inclined plank at the construction site where he was working. In the Supreme Court, Justice Alice Schlesinger granted plaintiff’s motion for summary judgment on his Labor Law §240(1) claim. This decision was affirmed by the First Department. In reversing the lower courts’ decisions, the Court of Appeals determined that there were issues of fact as to the Labor Law §240(1) claim because the plaintiff’s foreman arguably provided conflicting accounts of whether the plaintiff had adequate safety devices available and whether he knew both that they were available and he was expected to use them, whether he chose for no good reason not to do so and whether his accident would have been prevented had he not made that choice.

Valente v. Lend Lease (U.S.) Construction LMB, Inc. et al. 29 N.Y.2d 1104, 82 N.E.3d 448, 60 N.Y.S.3d 107 (2017).


Court Dismisses All Claims Against City and Contractor in Highway Motor Vehicle Accident Case

In a decision dated October 18, 2017, Justice Kevin J. Kerrigan granted our clients, the City of New York and E.C.C.O. III Enterprises, Inc., summary judgment dismissing the plaintiff’s complaint against them together with all cross-claims. The plaintiff, a driver of a motor vehicle on the northbound Van Wyck Expressway, alleged that on May 6, 2014, she was injured when her vehicle was struck from behind by a truck owned and operated by the co-defendants, after which the plaintiff’s vehicle came into contact with a concrete barrier. The City moved to dismiss the claims against the it because the City did not own the Van Wyck Expressway where the plaintiff’s accident occurred, the City did not perform or hire anyone to perform any construction work at the location and the City was not legally responsible for maintaining the Van Wyck Expressway. The Court agreed and held that the road is a New York State arterial highway upon which the City did not direct or control any work. The Court also held that the City was not responsible for the roadway pursuant to the Highway Law, warranting dismissal of all claims against it. E.C.C.O. moved to dismiss all claims against it because the plaintiff was not a party to E.C.C.O.’s contract with the New York State Department of Transportation, and therefore, E.C.C.O. did not owe a duty to the plaintiff. E.C.C.O. further argued that the concrete barrier was properly positioned, the lane markings were properly delineated, the travel lanes were sufficiently wide and E.C.C.O. reasonably and properly relied upon the plans provided by the NYSDOT. In dismissing all claims against E.C.C.O., the Court held that E.C.C.O. provided ample evidence that it did not create or exacerbate a dangerous condition, was not responsible for the design plans of the NYSDOT and was not responsible for implementing any traffic control at the location. Accordingly, the Court granted the City and E.C.C.O. summary judgment and dismissed all claims against these defendants as a matter of law.

Clark v. City of New York et al., Index No. 16149/14 (Queens Co. Sup. Ct., Oct. 18, 2017)