Court Dismisses All Claims as to Carpentry Subcontractor in Construction Accident Case Involving Renovation Project at Macy’s Department Store in New York City

In a decision dated June 7, 2019, the Hon. Margaret A. Chan granted our client Commodore Construction Corp. summary judgment dismissing the second third-party complaint and third third-party complaint and all cross-claims as a matter of law. This action arises out of Commodore’s Master Subcontract Agreement (and several change orders) with Structure Tone, Inc. for various construction work and services related to the renovation of the first and second floors and the mezzanine level of Macy’s Department Store in New York City. Macy’s hired Structure Tone to serve as the general contractor of the project. Structure Tone hired Shorr Electrical Contracting, Inc., the plaintiff’s employer, as the electrical contractor. Commodore was the carpentry subcontractor on the project, work which included installation and maintenance of fall protection. The plaintiff, a union electrician, alleges that after inspecting Shorr’s work on the mezzanine level of the store he tripped and fell over a protruding two by four that was wrapped in orange safety netting at the top of newly-constructed permanent stairs located between the first floor and the mezzanine levels. Macy’s moved for summary dismissal of plaintiff’s complaint and summary judgment on its claim for contractual indemnity against various defendants, including Commodore. Shorr moved for summary dismissal of the various claims against it and for summary judgment on its cross-claims against various defendants and its third-party claims against Commodore. Based on the testimony of Commodore’s witness, Commodore was involved in providing protection for the stairways at the premises, but it did not provide protection for the subject stairway. Although Commodore provided perimeter protection around the whole perimeter of the mezzanine level, including orange mesh and toe boards, to prevent debris from falling to the first floor, it did not use two by fours along the mezzanine level. Part of the perimeter protection for the mezzanine level included the stairways. If there was a problem with the perimeter protection, Commodore would be notified. Here, Commodore did not receive any such complaint. The Court determined that there was no evidence of negligence on the part of Commodore and dismissed all claims for common law indemnification and contribution as against it. Macy’s third-party claim for contractual indemnity was dismissed as academic because the plaintiff’s complaint was dismissed in its entirety as to Macy’s. Shorr’s claim for contractual indemnity was dismissed as to Commodore because the Court determined that the plaintiff’s accident did not arise from Commodore’s work under the subcontract. The claims against Commodore for breach of contract for the failure to procure insurance brought by Macy’s and Shorr were dismissed because they failed to oppose that branch of Commodore’s motion which sought dismissal of these very claims.

Lee Rudnitsky v. Macys Real Estate, LLC et al., Index No. 157417/2012 (N.Y. Co. Sup. Ct., June 7, 2019)

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This post was written by Sander Rothchild