Firm News
February 16, 2012
Court Grants Defendant Building Owner Summary Judgment Dismissing Plaintiff’s Complaint In Dog Bite Case
In a decision dated December 23, 2011, Justice Larry S. Schachner granted the defendant building owner’s motion for summary judgment dismissing the plaintiff’s complaint against it. The infant plaintiff sought damages for personal injuries allegedly sustained when he was bitten by a dog allegedly owned by a tenant in the defendant building owner’s premises. In granting the defendant building owner’s motion, the Court held that the record revealed that the defendant had no notice of the presence of the dog on the premises or of its vicious propensities. The incident also occurred off the defendant building owner’s property and there was no proof of any agency relationship nor was one pled. As such, the Court granted summary judgment to the defendant building owner and dismissed the plaintiff’s complaint as against it.
Desay v. Copo Management, LLC et al., Index No.: 350196/09 (Bronx Co. Sup. Ct., December 23, 2011)
January 17, 2012
We are pleased to announce that Sandro Battaglia has joined the Firm as Of Counsel.
January 16, 2012
We would like to welcome back Andrew Wiener as an Associate of the Firm.
January 12, 2012
Court Grants Defendant 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)
January 01, 2012
We are pleased to announce that Todd Paradeis has become a Partner of the firm.
December 31, 2011
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)
December 09, 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.
November 04, 2011
Appellate Division Dismisses Action Against All Defendants With Exception of Con Edison and Holds that Con Edison Is Exclusively Responsible for Maintenance Responsibility Over Sidewalk Grate In Question
In a decision dated November 1, 2011, the Appellate Division, First Department reversed the decision of the Supreme Court and granted summary judgment in favor of all defendants with the exception of Consolidated Edison (“Con Edison”). The plaintiff brought an action against Con Edison and other defendants for injuries allegedly sustained when he fell on a sidewalk adjacent to a metal grate owned by Con Edison. The First Department held that the non-Con Edison defendants were entitled to judgment as a matter of law because the evidence established that they did not have the ability to exercise control over the alleged sidewalk defect which caused the accident, Con Edison owned the grate and pursuant to 34 RCNY 2-07(b)(1), (2) had an exclusive duty to maintain it, as well as the area extending 12 inches around it. Accordingly, only Con Edison may be liable for the plaintiff’s injuries.
Lewis v. City of New York et al., 89 A.D.3d 410 (1st Dep’t 2011)
October 25, 2011
Court Dismisses Plaintiff’s Complaint Sounding in Common Law Negligence Against Defendants
In a decision dated September 26, 2011, Justice Debra A. James granted the defendants City of New York ("the City") and Skanska USA Civil Northeast Inc.'s ("Skanska") motion for summary judgment dismissing the plaintiff's complaint sounding in common law negligence against them. The Metropolitan Transportation Authority awarded Skanska the contract for a project that required the closure and removal of a certain portion of the sidewalk on the east side of Church Street in New York City and the rerouting of pedestrians into a temporary, barricaded walkway. The plaintiff allegedly tripped on a manhole cover while walking in the temporary walkway. The evidence established that the manhole cover was owned by third-party defendant, Empire City Subway Company. The Supreme Court held that because neither the City nor Skanska owned the manhole cover and because the manhole cover was not within the construction site, the City and Skanska could not be held liable to the plaintiff for her alleged injures. Alternatively, the plaintiff had argued that the City and Skanska created the alleged condition by placing a temporary walkway over the allegedly broken and defective roadway in the area of the manhole cover. However, the Supreme Court found that the plaintiff did not meet her burden of proving that the City or Skanska performed any work on the roadway in the vicinity of the manhole cover at any time immediately preceding the date of the accident and/or otherwise caused the alleged condition.
Barrett v. City of New York et al., Index No.: 405347/07 (N.Y. Co. Sup. Ct., September 20, 2011)
October 07, 2011
Appellate Division Dismisses Plaintiff’s Causes of Action Against the City for Common Law Negligence and Pursuant to Labor Law §§200 & 241(6)
In a decision dated August 23, 2011, the Second Department reversed the decision of the Supreme Court insofar as it denied the City’s motion for summary judgment seeking dismissal of the plaintiff’s causes of action for common law negligence and pursuant to Labor Law §§200 and 241(6). The Supreme Court had previously dismissed the plaintiff’s cause of action pursuant to Labor Law §240(1) so it was not an issue on appeal. The plaintiff, a union steward employed by a general contractor at the Hunts Point Water Pollution Control Plant, was allegedly injured when he stepped on a wooden ramp while alighting from his truck. According to the plaintiff, the ramp separated underneath his feet, causing him to fall to the ground. The Appellate Division held that the plaintiff’s causes of action for common law negligence and pursuant to Labor Law §200 should have been dismissed because the defendants did not supervise, direct or control the plaintiff’s work or have notice of the condition. The plaintiff’s own testimony established that the condition was not visible and apparent. The Court further held that the plaintiff’s the Labor Law §241(6) claim should have been dismissed because it was predicated upon an alleged violation of Industrial Code Rule 23-1.22(b)(2) which was inapplicable to the facts of the case.
Gray v. City of New York et al., 87 A.D.3d 679 (2d Dep't 2011)
July 20, 2011
John V. Fabiani, Jr., Thomas J. Hall and Christopher R. Toppo lectured for Chartis Insurance, Axis Insurance Group, ACE Insurance and Fleming & Hall at a seminar entitled "The Art of Effective Risk Transfer," in Alpharetta, Georgia.
June 22, 2011
John V. Fabiani, Jr. and Stephen M. Cohen lectured at a Travelers Insurance Company seminar entitled "Defending Damages On Spinal and TBI Claims," in Windsor, Connecticut.
June 15, 2011
Court Grants Defendant City of New York Summary Judgment Dismissing Plaintiff’s Complaint
In a decision dated June 15, 2011, Justice David B. Vaughan granted the defendant City of New York summary judgment dismissing the plaintiff’s complaint which alleged that the City was negligent and violated Labor Law §§200, 240(1) and 241(6). The plaintiff, an ironworker, was allegedly injured while working for his employer at a project located on the lower roadway of the Manhattan Bridge owned by the City. At the time of the accident, the plaintiff was standing on a steel box girder that was being lowered by a mobile crane when a “come-along” failed causing the girder to shake and the come-along’s chain to strike him in the right leg. The court granted the City’s motion for summary judgment dismissing the common law negligence and Labor Law §200 causes of action because the plaintiff’s work was supervised, directed and controlled by his employer and no one else. The cause of action pursuant to Labor Law §240(1) was dismissed because the plaintiff was not exposed to an elevation-related risk and a violation of the statute was not a proximate cause of his accident. Lastly, the court dismissed the cause of action pursuant to Labor Law §241(6) because the alleged Industrial Code Rules which served as a prerequisite to the §241(6) claim were either too general, inapplicable to the facts of the case, not violated and/or were not the proximate cause of the plaintiff’s accident.
O’Brien v. The City of New York, Index No.: 46072/07 (Kings Co. Sup. Ct., June 15, 2011)
June 11, 2011
Court Grants Defendant Building Owner Summary Judgment Dismissing Plaintiff’s Complaint
In a decision dated May 31, 2001, Justice May Ann Brigantti-Hughes granted the defendant building owner (“general contractor”) summary judgment dismissing the plaintiff’s complaint in its entirety. The plaintiff was a security guard who worked at a property located at 744 East 168th Street, Bronx, New York. On the night of November 3, 2003, he was performing a vertical check of the property to ensure that it was secure. While doing so, he allegedly slipped and fell on or near a paper bag on a staircase, which was dripping with oil and creating a slippery condition located between the fifth and sixth floors of the building. The defendant moved for summary judgment alleging that it had no actual or constructive notice of the alleged condition. The court agreed and held that there was simply no evidence in this matter demonstrating the length of time an oily bag was left on the staircase in order to establish that the defendant had constructive notice of this allegedly hazardous condition.
Brown v. The City of New York and Parrocks Associates, Index No.: 7159/05 (Bronx Co. Sup. Ct., May 31, 2011)
May 31, 2011
Defendant Safety Auditing Services Joint Venture Obtains Voluntary Discontinuance of Plaintiff’s Complaint and All Cross-Claims
The plaintiff claims that he sustained bodily injuries on November 8, 2005, at a construction and renovation project at the Newtown Creek Water Pollution Control Plant. During the course of his employment with Pegno/Tully Joint Venture, the plaintiff, while carrying a heavy metal doorframe, stepped on an open sewer drain in the basement of the “Grit Building” at the project. Prior to the plaintiff’s accident, Tams/Allied Joint Venture (“Joint Venture”) entered into an agreement with the New York City Department of Environmental Protection (“DEP”) to perform third-party occupational safety auditing services at various DEP projects, including the subject project. The duties of the Joint Venture at the project consisted of randomly visiting the project and physically observing site conditions in the presence of the contractor site safety representative. If any unsafe work practices or conditions were observed, the Joint Venture recorded the same in a database and discussed the issue with the appropriate DEP and contract management resident engineering staff as well as the contractor’s site safety representative. The Joint Venture did not have the authority to instruct any of the contractors or subcontractors on the site as to the means and methods of their work; nor did it have the authority to stop any of the contractors or subcontractors from performing their work. Significantly, it did not have any duty or responsibility to implement safety standards or to provide safety devices. In light of the foregoing, the Joint Venture successfully obtained a voluntary discontinuance of the plaintiff’s complaint alleging that the Joint Venture was negligent and violated Labor Law §§200, 240(1) and 241(6). The cross-claims interposed by the various codefendants were also voluntarily discontinued as against the Joint Venture.
Ingordo v. WDF, Inc. et al., Index No.: 42646/07 (Kings Co. Sup. Ct.)
May 08, 2011
Court Grants Defendants’ Motion for Summary Judgment Dismissing Complaint
In a decision dated May 4, 2011, Justice Sidney F. Strauss granted the motion for summary judgment brought by the defendants, an owner and construction manager, seeking a dismissal of the plaintiff’s complaint containing causes of action for common law negligence and violations of Labor Law §§200 and 241(6). The plaintiff, a concrete laborer, was using a come-a-long and was raking concrete. The floor where he was working was constructed of beams with Q-deck on top and then two layers of rebar on top of the Q-deck. To pour the concrete, several sections of eight-foot hose were connected to each other with clamps. The cement was supplied by a cement truck and pumped up through the hoses. After a section of the floor was poured, the laborers would remove the clamps that held the sections of hose together and the hoses would then be carried to the other side of the floor for washing. Just prior to the accident, the hose had been broken apart by one of the plaintiff’s coworkers. The plaintiff picked up an eight-foot section of hose and hung it over his right shoulder. Part of the those then went through the first level of rebar and became caught in the second level of rebar. While holding the hose with both arms wrapped around it, the plaintiff tried to yank the hose at least five times to free it. The plaintiff then felt something pop in his back and he fell to the floor. The Court dismissed the common law negligence and Labor Law §200 causes of action because the plaintiff’s claims implicated the means and methods of his work and the owner and construction manager did not supervise, direct or control the plaintiff’s work or have notice of any allegedly hazardous condition. Regarding the cause of action for Labor Law §241(6) premised upon violations of Industrial Code Rules 23-1.5, 23-1.7(b)(i) and 23-2.2, the Court determined that the defendants established that the Rules were either general safety provisions or not applicable to the facts of the case.
Squerciati v. The New York Times Building LLC et al., Index No.: 22535/08 (New York Co. Sup. Ct., May 4, 2011)
May 08, 2011
Court Dismisses All Claims Against Second Third-Party Defendant Safety Auditing Company
In a decision dated April 8, 2011, Justice Charles A. Markey granted second third-party defendant’s motion for summary judgment dismissing all claims and cross-claims against it. The plaintiff was standing on a scaffold dismantling a roll-up garage door. While attempting to remove a fastener for the roll-up mechanism, the mechanism sprung forward, striking the plaintiff in the head. The plaintiff was rendered unconscious and he subsequently fell from the scaffold.
The second third-party defendant was engaged by the City of New York to provide safety auditing services pursuant to a written contract. The indemnification clause in the contract required that the party to be indemnified prove that the second third-party defendant's negligence caused the plaintiff's accident. In granting second third-party defendant summary judgment, the Court held that the second third-party defendant was free of any negligence and it did not have actual or constructive notice of any dangerous condition. Therefore, the Court held that no party was entitled to indemnification from the second third-party defendant.
Fernandez v. The City of New York, et al., Index No.: 21228/06 (Queens Co. Sup. Ct., April 8, 2011)
April 27, 2011
In Memoriam: Irvin Lederer (1952-2011) The partners and associates of Fabiani, Cohen & Hall are saddened by the untimely death of their longtime colleague. Irv was an accomplished litigator and a wonderful person who was beloved by all who knew him. We will truly miss him.
April 15, 2011
John V. Fabiani, Jr. and Stephen M. Cohen lectured at a Zurich North America seminar entitled “New York Labor Law §§200, 240(1) & 241(6): A Primer,” in Parsippany, New Jersey.
February 18, 2011
Court Grants General Contractor Summary Judgment On Its Cause Of Action For Contractual Indemnification Against Plaintiff’s Employer
In a decision dated February 18, 2011, Justice Judith J. Gische granted the defendant/third-party plaintiff’s (“general contractor”) summary judgment motion seeking contractual indemnification against third-party defendant (“plaintiff’s employer”). The Court found that plaintiff’s employer’s subcontract agreement with the general contractor, which required the plaintiff’s employer to hold harmless and indemnify the general contractor, and the plaintiff’s employer’s insurance rider, which required it to obtain insurance for the benefit of the general contractor, were not inconsistent. Further, as the agreement did not condition plaintiff’s employer’s obligation to indemnify the general contractor on a finding that plaintiff’s employer was negligent, plaintiff’s employer’s obligation to indemnify the general contractor with respect to the plaintiff’s causes of action pursuant to Labor Law §§240(1) and 241(6) was unconditional, and the general contractor’s summary judgment motion was not premature.
Palamar v. Koch Skanska, Inc. et al., Index No.: 114187/04 (New York Co. Sup. Ct., February 18, 2011)
February 10, 2011
Court Grants Defendant Joint Venture’s Motion for Summary Judgment Dismissing Plainiff's Complaint Where Defendant Was an “Employer” Within the Meaning of Workers' Compensation Law §11
In a decision dated February 11, 2011, Justice Herbert Kramer granted defendant Joint Venture’s motion for summary judgment dismissing plaintiff’s causes of action for common law negligence and pursuant to Labor Law §§200, 240(1) & 241(6). The plaintiff alleged that while in the course of his employment with a member of the Joint Venture, he suffered an injury to his right thumb, which required partial amputation. The Joint Venture moved for summary judgment arguing that an employee of a member of a joint venture is a “special employee” of the joint venture and each of its members. As such, the suit should be barred by Workers' Compensation Law §11. In support of the motion, the Joint Venture provided evidence that at the time of his accident, the plaintiff was working at the behest of the Joint Venture’s contract with the NYCDEP, that the Joint Venture purchased worker’s compensation coverage from which the plaintiff was drawing benefits and that the Court was bound by the Workers' Compensation Board’s finding that the Joint Venture was the plaintiff’s employer. In opposition, the plaintiff argued that the language of the agreement between the Joint Venture and the NYCDEP provided that the plaintiff was not an employee of the Joint Venture and that the motion was premature in that additional discovery, including depositions, were required to settle the issue of direction and control over the means and methods of the plaintiff’s work. The Court held that sufficient evidence to grant the motion was found among the undisputed facts and that no further discovery was required. The Court determined that the Joint Venture was a “special employer” within the meaning of Workers' Compensation Law §11 and issued an order dismissing the action against the Joint Venture with prejudice.
Valencia v. SPMP Joint Venture et al., Index No.: 15355/09 (Kings Co. Sup. Ct., February 11, 2011)
January 27, 2011
Court Dismisses Complaint and All Cross-Claims As Against Defendant General Contractor
In a decision dated January 27, 2011 Justice Martin Solomon dismissed the plaintiff union tile-fitter's complaint against the defendant "core and shell" general contractor because the general contractor did not owe the plaintiff, who tripped and fell into an open grease trap, a duty of care. The Court held that because the condition was created by the subcontractor of a second, "interior-fit-out," general contractor, and there was no evidence of shared duties between the "core and shell" contractor and the "interior-fit-out contractor," the Labor Law did not apply to the "core and shell" contractor.
Seifert v. The City of New York Industrial Development Agency et al., Index No. 14714/05 (Kings Co. Sup. Ct., January 27, 2011)
January 19, 2011
Court Dismisses Complaint and Co-Defendant's Cross-Claim for Contractual Indemnification Against Defendant Snow Removal Contractor
In a decision dated January 19, 2011, Justice Angela G. Iannacci dismissed the plaintiff pedestrian’s complaint against the defendant snow removal contractor because it did not owe the plaintiff, who slipped and fell on ice, a duty of care and did not create or exacerbate the alleged ice condition on the sidewalk in front of co-defendant property owner's premises. In addition, because there was no evidence that the snow removal contractor was negligent in its snow removal, the Court dismissed the property owner's cross-claim for contractual indemnification as against the snow removal contractor.
Gayer v. Willow Wood Associates, LP et al., Index No. 14285/08 (Nassau Co. Sup. Ct., January 19, 2011)
January 10, 2011
Court Grants City of New York’s Motion for Summary Judgment Dismissing Plaintiff’s Claims for Common Law Negligence and Pursuant to Labor Law §241(6)
In a decision dated January 10, 2011, Justice Paul G. Feinman granted defendant the City of New York's motion for summary judgment dismissing the plaintiffs’ claims for common law negligence and pursuant to Labor Law §200 and §241(6), predicated upon an alleged violation of Industrial Code Rule 23-1.7(e) (tripping hazards). At the time of the accident, the plaintiff, an ironworker, had been replacing steel on the Williamsburg Bridge. His work involved removing rivets with a “helldog.” The rivets were being caught by a cone and then dumped into buckets for removal. At lunchtime, the plaintiff was walking from his work area to a shanty when he allegedly tripped over a broken rivet located approximately 30 feet from his work area. The plaintiff did not see the subject rivet prior to the accident. Judge Feinman held that, despite inspections performed by City employees, there was no evidence that the City supervised or controlled the plaintiff’s work and, as such, the City was entitled to dismissal of the plaintiffs’ cause of action for common law negligence and pursuant to Labor Law §200. The Court further held that, despite the City’s awareness that some rivets may not be caught by the cones, there was no evidence that the City had notice of the alleged condition. Finally, holding that the rivet over which the plaintiff allegedly tripped was integral to the steel replacing work being performed on the Bridge, the Court also dismissed the plaintiffs’ Labor Law §241(6) claim predicated upon an alleged violation of Industrial Code Rule 23-1.7(e) (tripping hazards).
Zieris v. The City of New York, Index No. 103335/06 (N.Y. Co. Sup. Ct., January 10, 2011)
