Firm News

Court Finds That Contract Provision Requiring Indemnity for Claims “Arising Out Of” the Work is Triggered Where Third-Party Defendant Returns to Work Site to Resolve a Contract Dispute

In a decision dated November 24, 2020, the Honorable Frederick D.R. Sampson of Queens County Supreme Court awarded our clients Urban Foundation (“Urban”) summary judgment dismissing the plaintiff’s Labor Law §§200 and 241(6) claims against it, and our clients 33 Bond GC LLC (“Bond GC”), 33 Bond St. LLC (“Bond LLC”) and TF Cornerstone (“Cornerstone”) summary judgment dismissing the plaintiff’s Labor Law §200 claim against them. The plaintiff’s only surviving claim was his Labor Law §241(6) claim against 33 Bond GC, Bond LLC, and Cornerstone.  The Court also granted our motion for summary judgment on their behalf against the third-party defendant, Gramercy Group, Inc. (“Gramercy”), for contractual indemnification.  As part of a construction project, 33 Bond GC hired Gramercy to demolish a parking garage.  The contract required Gramercy to leave behind a certain amount of debris.  Gramercy finished its demolition work, but 33 Bond GC and Gramercy disputed whether Gramercy had left the correct amount of debris at the site.  On the day of the accident, representatives of 33 Bond GC and Gramercy went to the site to resolve the dispute.  The plaintiff’s accident occurred when, while walking the site, he was struck by an excavator operated by Urban.  The contractual indemnity provision in 33 Bond GC’s contract with Gramercy required it to indemnify the third-party plaintiffs for all claims which “arise out of” or are “connected with . . . the performance of the work.”  Gramercy contended that because it had finished its demolition work the accident did not arise out of its work.  We argued that Gramercy’s interpretation of the indemnity provision was overly narrow, and that under controlling New York law, its indemnity obligation was triggered because at the time of the accident the plaintiff was employed by Gramercy and he was performing work for Gramercy that 33 Bond GC had hired it to perform.  Therefore, the plaintiff’s accident “arose out of” and was “connected with” the performance of Gramercy’s work, thereby triggering its indemnity obligation.  The trial court agreed and granted 33 Bond GC, Bond LLC and Cornerstone summary judgment on their third-party claims against Gramercy for contractual indemnification.   

Joseph Cianciulli v. Urban Foundation/Engineering, LLC, et al., Index No. 707630/2020 (Sup. Ct. Queens Co. Nov. 24, 2020)  


Court Dismisses Third-Party Action in its Entirety Against Our Mechanical Contractor Client in Case Involving Plaintiff’s Fall From a Ladder

In a decision dated November 18, 2020, the Honorable Carol R. Edmead of the New York County Supreme Court granted our client third-party defendant Fresh Meadow Chiller Services, LLC’s (‘Fresh Meadow”) motion for summary judgment dismissing the third-party action by defendant New York Society for the Relief of the Ruptured and Crippled, Maintaining the Hospital for Special Surgery (“HSS”), including those claims for contractual and common law indemnification, contribution and breach of contract for the failure to procure insurance. HSS owns a hospital located at 535 East 70th Street, New York, New York. Through a Preventative Maintenance Agreement HSS engaged Fresh Meadow to provide maintenance of two large industrial chillers which provided cold water to the MRI machines in the hospital. Plaintiff, a technician employed by Fresh Meadow, alleges that he slipped and fell while descending a ladder from which he cleaned the chiller coils. The Court held that Fresh Meadow demonstrated its entitlement to summary judgment on HSS’s common law indemnification and contribution claims against it because plaintiff did not sustain a grave injury within the meaning of Workers’ Compensation Law Section 11. With regard to HSS’s breach of contract claim against Fresh Meadow, the Court held that the limitation of liability provision of the Preventative Maintenance Agreement did not confer an obligation by Fresh Meadow to procure insurance for HSS’s benefit, but in any event, the policy submitted by Fresh Meadow showed that it procured the insurance it was required to procure. The Court held that HSS failed to demonstrate entitlement to summary judgment on its contractual indemnity claim against Fresh Meadow because there was no language in the Preventative Maintenance Agreement which evinced a clear intent to indemnify HSS. In sum, the Court dismissed the third-party action against Fresh Meadow in its entirety as a matter of law.

Louis Mazzarisi v. New York Society for the Relief of the Ruptured and Crippled, Maintaining the Hospital for Special Surgery, Index No. 155022/2016 (N.Y. Co. Sup. Ct. Nov. 18, 2020)


Partner John Fabiani and Associate Jordan Meisner Obtain Summary Judgment on Appeal Dismissing Case as a Matter of Law

In a decision dated October 28, 2020, the Appellate Division, Second Department reversed denial of our summary judgment motion dismissing the complaint and all cross-claims as to our client, Vixxo Corporation.  The plaintiff was injured when a newly installed automatic door closed on her while she was exiting a Michael’s Store in Brooklyn, New York.  Vixxo had a master service agreement with Michael’s but was not notified of the broken door until after the accident, at which time it arranged to have the door repaired.  The Supreme Court denied our motion as premature.  The Second Department reversed, finding that Vixxo had demonstrated its prima facie entitlement to judgment by demonstrating, through its submissions, that it owed no duty of care to the plaintiff.  The parties opposing the motion failed to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition were exclusively within our client’s knowledge and control.  The complaint and all cross-claims were dismissed.

Arlene Braddy v. Related Companies, et al., 187 A.D.3d 1120, 131 N.Y.S.3d 239 (2d Dep’t 2020)


Court Dismisses Labor Law Complaint In Its Entirety Against Defendants Where Plaintiff Was Injured When He Fell Into An 18 Inch Elevator Pit While Pulling a Dolly

In a decision dated May 14, 2020, the Hon. Margaret A. Chan of the New York County Supreme Court dismissed the plaintiff’s entire complaint, which alleged causes of action pursuant to Labor Law §§240(1), 241(6), 200 and for common law negligence against our clients, NYY Steak Manhattan, LLC (“NYY Steak”) and Plaza Construction Corp. (“Plaza”). The plaintiff, a steamfitter, employed by Day & Nite Refrigeration, alleged that he sustained personal injuries when he was transporting a refrigeration unit at a renovation project. NYY Steak was the lessee of the property and it retained Plaza as the construction manager for the project. The plaintiff alleged that he was walking backwards while pulling a dolly which held a refrigeration unit, as his co-worker was pushing the cart. While doing so, the plaintiff stepped on a piece of wood and then fell into an elevator pit that was 18 inches deep. The Court dismissed the plaintiff’s Labor Law §240(1) claim. It held that this section did not apply to the plaintiff’s fall into an 18 inch hole as he was performing his assigned task of delivering a refrigeration unit while pushing a cart. The Court also dismissed the plaintiff’s §241(6) claim on the ground that none of the Industrial Code Rules alleged by the plaintiff applied. Additionally, the Court dismissed the plaintiff’s Labor Law §200 and common law negligence claims based on the absence of any evidence that NYY Steak or Plaza supervised or controlled the injury-producing work or that it created the alleged dangerous condition or had notice of it prior to the accident.

Kevin McGonigal v. NYY Steak Manhattan, LLC, et al., Index No. 158327/2013 (N.Y. Co. Sup. Ct. May 14, 2020)


Court Dismisses Plaintiff’s Complaint in Its Entirety As to Defendants in Construction Accident Case Involving Plaintiff Who Was Struck By Perimeter Fence

In a decision dated May 29, 2020, the Hon. James Auguste of the New York County Supreme Court granted our client, the Metropolitan Transportation Authority (“MTA”), summary judgment dismissing the plaintiff’s entire complaint as against it.  The plaintiff laborer was employed by the general contractor, non-party Plaza Construction (“Plaza”), on the construction of the Fulton Street Transit Center in Manhattan.  The alleged accident occurred following the delivery of a dumpster container to the construction site.  The plaintiff was attempting to close one of two gates that opened outward from a perimeter fence when a gust of wind allegedly blew the other gate into the plaintiff’s body, causing him to make contact with a dumpster container.  The MTA sought summary judgment dismissing the plaintiff’s causes of action pursuant to Labor Law §§240(1), 241(6) and 200 and for common-law negligence, as well as dismissal of the claim for damages based on alleged hearing loss on the grounds that it was untimely due to the plaintiff’s failure to include this allegation in the Notice of Claim.  The plaintiff did not oppose dismissal of the §§240(1) and 241(6) claims or the damages claim for alleged hearing loss.  With respect to the Labor Law §200 and common-law negligence claims, the Court held that the MTA established as a matter of law that it neither created nor had actual or constructive notice of the alleged condition of the gate and the MTA did not have any supervisory control over this area or the plaintiff’s work.

James Stack v. Metropolitan Transportation Authority, et al., Index No. 157479/2014 (N.Y. Co. Sup. Ct., May 29, 2020)


Court Dismisses Labor Law Complaint In Its Entirety As To Defendants Where Plaintiff Was Injured By A Sawzall While Lying On Ductwork Attached To The Ceiling

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)


Court Dismisses Plaintiff’s Complaint in Its Entirety As to Airport Defendants in Action Involving Catering Rack that Allegedly Fell Onto Plaintiff

In a decision dated March 10, 2020, Justice Richard G. Latin of Queens County Supreme Court granted the defendants’ motion for summary judgment dismissing plaintiff’s complaint in its entirety as to our clients, Delta Airlines, Inc. (“Delta”), SCIS Air Security Corporation (“SCIS”) and LSG Sky Chefs North America Solutions, Inc. (“Sky Chefs NAS”). The plaintiff commenced the instant action to recover for injuries she allegedly sustained as a result of an improperly stacked catering rack which caused a food carrier/container to fall and strike her arm while working for LSG Sky Chefs, Inc. (“Sky Chefs”) at the John F. Kennedy International Airport, Building 139. At the outset of the Court’s decision, it found that the defendants met their prima facie burden in establishing the factual basis for summary judgment. The Court recounted the detailed information and evidence that was submitted with the motion, including all of the affidavits of each of the defendants, the testimony cited from the plaintiff’s depositions as well as the relevant provisions of the Catering Agreement between Sky Chefs and Delta. Based on the affidavits that were submitted on behalf of Delta and Sky Chefs, the Court determined that the racks from which the Delta container allegedly fell onto the plaintiff were not Delta property, but rather, they were owned by the plaintiff’s employer, Sky Chefs. Additionally, the Court acknowledged that such racks were returned to the Sky Chefs’ kitchen after they were used to transport the carriers to the aircraft and were then utilized in the catering of other airlines’ aircraft from Building 139. Furthermore, the Court acknowledged that Sky Chefs had painted the yellow “safety lines” on the walls of the kitchen and enforced the guidelines that the items should not be stacked above this line.


The Court also noted that the plaintiff’s opposition rested solely on the theory of negligent bailment which it rejected. While the plaintiff had argued that there was a triable issue of fact as to whether the defendants should be held liable on the grounds that the equipment they provided to Sky Chefs was not safe for its intended use and was loaned from Delta to Sky Chefs, the Court noted that such characterization assumed that Delta owned the racks and loaned them to Sky Chefs in the first instance. However, the Court ruled that such a claim of negligent bailment was properly refuted by the defendants in their submission of the supporting affidavits that Sky Chefs and not Delta owned the racks.

Finally, the Court noted that the common law in the State of New York does not impose a duty on one party to control the conduct of a third person to prevent them from causing injury to others and that liability for such negligent acts of third persons generally arises when the defendant has authority to control the actions of said third persons. The Court ruled that here, however, the defendants demonstrated that they did not own or exercise control over the racks in question nor did they control the activities of the plaintiff or her employer, Sky Chefs. As such, absent such a special relationship which had not been established by the plaintiff, the defendants did not breach their duty of reasonable care to the plaintiff. The Court also dismissed the plaintiff’s claims against Sky Chefs NAS and SCIS on these grounds as well and as the plaintiff had focused her opposition to the motion solely on Delta. In light of the above, the defendants’ motion for summary judgment was granted dismissing the plaintiff’s complaint in its entirety as a matter of law.

Betsy Silva Casas v. Delta Air Lines, Inc. et al., Index No. 708865/2016 (Queens Co. Sup. Ct., Mar. 10, 2020)


Court Denies Plaintiff Summary Judgment On His Labor Law §240(1) Claim In Case Involving a Falling Unsecured Piece of Sheetrock

In a decision dated January 29, 2020, Justice Barbara Jaffe of the New York County Supreme Court denied plaintiff’s moton for summary judgment as to our client, 60 Hudson Owner, LLC, on the plaintiff’s cause of action pursuant to Labor Law §240(1). The plaintiff, an employee of non-party, Northern Bay Contractors, Inc., was hired to perform work at 60 Hudson Street, owned and operated by the defendant. The plaintiff alleged that during the course of his work he was struck by a falling, unsecured piece of sheetrock and there were no adequate safety devices provided to prevent it from falling. The Court seized upon the fact that plaintiff was unable to adequately describe the size or weight of the subject sheetrock, and that the evidence he presented was insufficient to demonstrate that the subject sheetrock either plummeted from more than a minimal height or that it was sufficiently heavy to warrant the use of a safety device. Had the Court found either to be the case, Labor Law §240(1) would have been applicable, yet firmly based upon the affidavits the defendant presented, the Court did not. Furthermore, the Court found the defendant’s witness affidavits compellingly indicative of a question of fact between plaintiff’s version of events and the defendant’s version of events. In particular, one of the defense witnesses affirmed that the sheetrock weighed between one to three pounds, measured 18 by 12 inches, and questionably could not have generated the force that Labor Law §240(1) jurisprudence has required concerning the weight of falling objects. Finally, the Court found that there was the likelihood, once again based upon the defendant’s witness affidavit that the sheetrock was in the process of being installed, in which case it certainly could not have been secured because to secure it would have been “contrary to the objective of the work plan.” Based on the defendant’s fact witness affidavits which supplied details regarding the nature of the work taking place and the dimensions/weight of the sheetrock that fell, as well as the defense liability expert’s professional opinion as a construction site safety expert that the sheetrock was not required to be secured, the Court concluded that the defendant raised issues of fact requiring the denial of the plaintiff’s motion.

Victor Vega v. 60 Hudson Owner, LLC, Index No. 158179/2016 (N.Y. Co. Sup. Ct., Jan. 29, 2020)