Firm News

Court Grants “Labor Law” Defendants Summary Judgment Dismissing Plaintiff’s Complaint

In a decision dated May 2, 2012, Justice David B. Vaughan granted defendants’ Perkan Concrete Corp., the New York City School Construction Authority, the City of New York and the Board of Education of the City of New York’s motion for summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violations of Labor Law §§200, 240(1), 241(6). The construction worker plaintiff, age 56 at the time of the accident, alleged that he sustained personal injuries on November 14, 2007, while working on the sidewalk abutting Public School 329 in Brooklyn, New York. On that date, his leg was contacted by a Bobcat vehicle being operated by a co-worker. The Court granted in its entirety the defendants’ summary judgment motion seeking dismissal of all Labor Law and common law negligence claims. Of particular note was the Court’s conclusion, inherent in its dismissal of the case, that none of the plaintiff’s enumerated provisions of the Industrial Code were applicable, were violated or were substantial factors in the happening of the accident.

Gonzalez v. Perkan Concrete Corp., Index No.: 24209/08 (Kings Co. Sup. Ct., May 2, 2012)

Court Grants Defendant’s Motion for Summary Judgment Dismissing Plaintiff’s Causes of Action for Common Law Negligence and Violations of Labor Law §§200, 240(1) and 241(6)

In a decision dated April 18, 2012, Justice Roy S. Mahon granted defendant Eastport Home & Land Company’s motion for summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violations of Labor Law §§200, 240(1), 241(6). This action arises out of the personal injuries allegedly sustained by the plaintiff on March 3, 2005, at approximately 2:30 p.m., while he was working as a prefabricated stair installer. The plaintiff and a co-worker were carrying a set of prefabricated stairs to one of the condominium units being constructed at a condominium complex under development. The plaintiff was walking backwards when he allegedly tripped over a PVC pipe that was buried in the ground. Regarding the common law negligence and Labor Law §200 causes of action, the Court determined that this case involved the condition of the premises so the plaintiff was required to prove that the defendant had either created the dangerous condition (i.e. an exposed piece of buried PVC pipe) or had actual or constructive notice of it. The Court determined that the defendant established that it did not create the dangerous condition and further that it did not have notice, actual or constructive, of the specific condition that injured the plaintiff. According to the Court, the plaintiff was unable to refute the defendant’s arguments with proof in admissible form. The Court also dismissed the plaintiff’s Labor Law §240(1) cause of action because the plaintiff’s accident did not involve an elevation-related risk or the effects of gravity. Regarding the plaintiff’s Labor Law §241(6) cause of action, the Court determined that none of the Industrial Code Rules cited by the plaintiff were supported by the record. In light of the foregoing, the Court granted the defendant’s motions for summary judgment and dismissed the plaintiff’s complaint in its entirety.

McCullough v. L.P. Stair & Rail, Inc. et al., Index No.: 16458/07 (Nassau Co. Sup. Ct., April 18, 2012)

Stephen M. Cohen Wins Defense Verdict in Labor Law Case.

The claimant, a 44-year-old Union Local 806 bridge painter/sandblaster employed by CCA Civil/Halmar subcontractor Mimosa Construction, Inc., claims that he was injured on September 26, 2009, at a construction yard underneath the Alexander Hamilton Bridge in Bronx, New York.  He alleges that while trying to manually lift heavy steel tubes, he tripped/slipped on debris (an empty water bottle) on the bed of the truck he was standing on, causing the steel he was holding to hit his elbow.  He then fell onto the bed of the truck. The claimant brought suit against the State of New York and the New York State Department of Transportation in the Court of Claims alleging common law negligence and violations of Labor Law §§200, 240(1) and 241(6).  As a result of the accident, the claimant allegedly sustained serious personal injuries and never returned to work. Following a bench trial before Hon. Faviola A. Soto, the State and DOT successfully obtained a defense verdict thereby dismissing the claimant’s case.

Rocha v. State of New York et al., Index No. 117724 (N.Y. Ct. Claims 2012)

Thomas J. Hall Wins Verdict In Favor of Defendants / Second Third-Party Plaintiffs on Contractual Contribution / Indemnity Claims in Labor Law Case.

The plaintiff, a plumber employed by second third-party defendant, Pace Plumbing Corp., alleges that he was involved in a construction accident on April 17, 2003, at a building owned by defendant Rockefeller Center North, Inc. and leased by defendant Time, Inc. The plaintiff sued Rockefeller / Time, who in turn impleaded Pace asserting a contractual contribution / indemnity claim based upon a one page indemnification agreement that was contained within a subcontract for plumbing demolition work between Pace and third-party defendant, McCann Inc.  After the completion of discovery, Rockefeller / Time and Pace negotiated a partial settlement with the plaintiff whereby they agreed to pay a sum certain to settle the plaintiff’s claims and to proceed to trial on Rockefeller / Time’s second-third party claims for contractual contribution / indemnity against Pace. At trial, Rockefeller / Time successfully obtained a verdict in its favor on the contractual contribution / indemnity claims against Pace.

Picano v. Rockefeller Center North, Inc. et al., Index No. 115832/04 (N.Y. Co. Sup. Ct. 2012)

First Department Affirms Dismissal of Plaintiff’s Complaint against Defendant City of New York

In a decision entered March 13, 2012, the Appellate Division, First Department unanimously affirmed the lower court’s decision granting defendant, the City of New York, summary judgment dismissing the plaintiff’s complaint, including those causes of action for common law negligence and pursuant to Labor Law §§200 and 241(6).  The plaintiff, an ironworker employed by a non-party contractor, was injured while performing rivet removal work on the Williamsburg Bridge when he stepped on a loose rivet stem and fell. The First Department held that the common law negligence and Labor Law §200 causes of action were properly dismissed by the lower Court because there was no evidence that the City created the condition and it was not responsible for nor did it have any input in setting up the work site. Moreover, the plaintiff testified that he did not notice any debris on the platform where he fell before the accident and that proper procedures were in place to clear the platform of any debris during the day. Additionally, the City did not receive any prior complaints regarding any tripping hazards. The Appellate Division also held that the lower Court properly dismissed plaintiff’s Labor Law §241(6) claim, which was predicated on an alleged violation of Industrial Code Rule 23-1.7(e). According to the First Department, even if the area the plaintiff traversed could be deemed a “passageway” within the meaning of Rule 23-1.7(e), the plaintiff testified that he tripped on the rivet after he entered the common, open work area. Rule 23-1.7(e) also did not apply because the evidence showed that the subject rivet stem constituted an integral part of the plaintiff’s work. The City’s evidence that the plaintiff was engaged in rivet removal, such work was ongoing in various parts of the bridge, and all falling parts could not be caught while the plaintiff and his coworkers were actively engaged in the removal work, established that the rivet stem resulted from the work plaintiff was performing.  The plaintiff’s argument that the rivet did not originate from the work he himself was performing was found by the Appellate Division to be unavailing, as rivets left by the plaintiff’s coworkers, who were performing the same rivet removal work, could still be deemed an integral part of the work.

Zieris v. City of New York, 93 A.D.3d 479, 940 N.Y.S.2d 72 (1st Dep’t 2012)

We are pleased to announce that Sandro Battaglia has joined the Firm as Of Counsel

Court Grants Defendant Skanska USA Inc. Summary Judgment Dismissing Plaintiff’s Complaint

In a decision dated January 9, 2012, Justice Julia I. Rodriguez granted defendant Skanska USA Inc.’s (“Skanska”) motion for summary judgment dismissing the plaintiff’s complaint sounding in common law negligence as against Skanska.  The plaintiff alleged that he sustained personal injuries on March 22, 2007, while walking in the crosswalk at the intersection of West 161st Street and Gerard Avenue, Bronx, New York.  The Court determined that Skanska established by testimony and documentary evidence that it did not perform work at the accident site. While the plaintiff had submitted testimony that Skanska was working in the area of the accident, he offered no other form of evidence to substantiate that claim. Further, the plaintiff’s attorney’s affirmation indicating that the documents presented by Skanska provided proof of the existence of work being performed in the subject intersection was, upon the Court’s review, without merit. As such, the Court granted summary judgment to Skanska on the issue of liability and dismissed the plaintiff’s complaint as against it.

Amasike v. City of New York et al., Index No.: 305167/08 (Bronx Co. Sup. Ct., January 9, 2012)

We are pleased to announce that Todd Paradeis has become a Partner of the firm.

Complaint Dismissed Against Defendant Joint Venturer Because Plaintiff’s Claims Are Barred By Exclusivity Provisions of Workers’ Compensation Law

In a decision dated December 12, 2011, Justice Mark Friedlander granted defendant Tully Construction Co., Inc.’s (“Tully”) pre-answer motion for summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violation of Labor Law §241(6) as against Tully. The plaintiff alleged that he sustained personal injuries on May 20, 2009, while working at a construction project at the Croton Water Filtration Plant in Bronx, New York. At the time of the accident, the plaintiff was employed by Skanska USA Civil Northeast, Inc. formerly known as Slattery Skanska Inc. (“Skanska”). Skanska had entered into a joint venture agreement, dated September 6, 2006, with Gottlieb Skanska, Inc. (now known as Skanska Mechanical and Structural Inc.) and Tully, forming the Skanska/Tully Joint Venture (“Joint Venture”), for the sole purpose of submitting a bid for, and obtaining a contract for the performance of work for the New York City Department of Environmental Protection project at the Croton Water Filtration Plant. Following the plaintiff’s accident, he filed for and accepted workers’ compensation benefits from the Joint Venture. The Court held that the documentation submitted by Tully unequivocally established that it was a part of the Joint Venture pertaining to the construction at the Croton Water Filtration Plant. The Court further cited to Appellate Division, First Department precedent holding that: “Where there is one or more employer in a joint venture, an employee working for one employer is considered an employee of the other employers in the joint venture.” Fallone v. Misericordia Hosp., 23 A.D.2d 222, 289 (1st Dep’t 1965). In light of the foregoing law and facts, the Court held that plaintiff’s complaint against defendant Tully was barred by the exclusivity provisions of the Workers’ Compensation law.

Gomes v. Tully Construction Co., Inc., Index No.: 303223/11 (Bronx Co. Sup. Ct., December 12, 2011)

John V. Fabiani, Jr. lectured at the New York State Bar Association seminar entitled “Construction Site Accidents– Direct and Cross Examination of Plaintiff–2011 Update,” in New York City.