In a decision dated April 28, 2017, Justice Manuel J. Mendez granted our clients, defendants Bank of America Corp. and Structure Tone, Inc., summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violations of Labor Law §§200 and 241(6). The plaintiff, an employee of non-party Almar Plumbing and Heating Corporation, claimed that he sustained injuries on September 2, 2008, while working at the construction site located at 1111 Avenue of the Americas, New York, New York. The project at the premises, known as “One Bryant Park”, entailed the new construction of a commercial building with interior corporate offices, amenities and retail space. Plaintiff claimed he was injured when his foot slipped on an unsecured piece of masonite while exiting an elevator at the C-2 level of the building. The masonite that had allegedly caused plaintiff to fall had been placed over a poured concrete floor which had been covered by vinyl laminate flooring to protect it during the remainder of the construction process. By way of background, the plaintiff had previously commenced a lawsuit arising out of the same accident against our clients, defendants One Bryant Park, LLC, One Bryant Park Development Partners LLC, the Durst Manager LLC and Tishman Construction Corporation. Plaintiff then commenced the instant action against Bank of America Corp and Structure Tone Inc. While the plaintiff’s motion to consolidate the two actions was pending, the defendants who were sued in earlier action moved for summary judgment dismissing all claims against them. At that time, Justice York granted the motion for summary judgment prior to the consolidation and dismissed the entire complaint including those claims for common law negligence and violation of Labor Law §§ 200 and 241(6). This decision was affirmed by the Appellate Division, First Department. See Stier v. One Bryant Park LLC et al., 113 A.D.3d 551, 979 N.Y.S.2d 65 (1st Dep’t 2014). In regard to the motion for summary judgment in the instant action, Justice Mendez held that the defendants Bank of America Corp. and Structure Tone, Inc. established their entitlement to summary judgment on the common law negligence and Labor Law §200 claims because they had no prior notice of the masonite placed in front of the elevator door. The defendants established that Bank of America Corp. did not control the work site or supervise or control plaintiff’s work and did not have actual or constructive notice of the allegedly defective masonite. Similarly, the defendants established that Structure Tone, Inc. had no presence on the subject property, and therefore could not have supervised or controlled plaintiff’s work and could not have had notice of an alleged defective condition involving masonite. Regarding the Labor Law §241(6) cause of action, the Court held that defendants provided evidence that Industrial Code Rules 23-1.7(d), (e)(1) and (e)(2) were not applicable to the facts surrounding plaintiff’s accident. The Court noted that both Justice York and the First Department previously found there was no evidence plaintiff’s accident was the result of a failure to remove or cover a foreign substance, and masonite is not a slipping hazard contemplated by Rule 23-1.7(d). Additionally, Rule 23-1.7(e), which requires work areas to be kept free of tripping hazards, was held to be inapplicable because the plaintiff did not allege that he tripped on an accumulation of dirt or debris. Rather, the plaintiff testified that he slipped on an unsecured piece of masonite, which was not a tripping hazard. Justice Mendez held that plaintiff failed to raise an issue of fact as to the Industrial Code Rules.
Stier v. One Bryant Park LLC et. al., Index. No 103134/2009 (N.Y. Co. Sup. Ct. April 28, 2017)
On March 30, 2017, the Court of Appeals reversed the Appellate Division, First Department’s decision which granted the plaintiff summary judgment on his Labor Law §240(1) cause of action. The plaintiff, an employee of subcontractor DCM Erectors, brought suit against our clients, the Port Authority of New York and New Jersey and Tishman Construction Corporation of New York, for injuries allegedly sustained when he slipped and fell while descending a wet temporary exterior metal staircase at the 1 World Trade Center construction site. The Port was the owner of the premises and Tishman was the general contractor. Both the plaintiff and defendant moved in the Supreme Court for summary judgment on the plaintiff’s Labor Law §240(1) claim. The plaintiff also moved for summary judgment on his Labor Law §241(6) premised on an alleged violation of Industrial Cede Rule 23-1.7(d). In support of his motion, the plaintiff submitted an expert affidavit from a professional engineer and licensed building inspector who opined that the stairs were not in compliance with good and accepted standards of construction site safety and practice or with the Occupational Safety and Health Administration provision which requires that slippery conditions on stairways be eliminated. The plaintiff’s expert also opined that the steps showed signs of wear and tear and were smaller, narrower and steeper than typical stairs. The plaintiff also submitted an affidavit from a coworker stating that “almost everyone was aware of the slippery nature of the stairs.” In opposition to the plaintiff’s motion and in support of their own motion, the defendants submitted affidavits from a construction safety expert who opined that the staircase was designed for both indoor and outdoor use and was designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather. The expert also noted that the steps had perforated holes to allow rain to pass through and raised metal nubs for traction. The expert also found the tread depth and width of the steps met good and acceptable construction industry standards and he disputed that the staircase was smaller, narrower or steeper than usual. The Supreme Court ultimately denied the motions for summary judgment on plaintiff’s Labor Law §240(1) claim, finding that there were issues of fact regarding whether the temporary staircase provided proper protection, but granted the plaintiff summary judgment on Labor Law §241(6) finding a violation of Industrial Cede Rule 23-1.7(d). On appeal, the First Department modified the lower court’s decision, granting plaintiff’s motion for summary judgment on his Labor Law §240(1) claim but reversing the granting of summary judgment on the plaintiff’s Labor Law §241(6) claim. It held that although there were conflicting expert opinions as to the adequacy and safety of the steps, it was “undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling.” With respect to the Labor Law §241(6) claim the First Department found that questions of fact existed as to whether or not the defendants had notice of the condition of the staircase. The defendants then moved and were granted leave to appeal to the Court of Appeals by the First Department. On appeal, the Court of Appeals reversed the First Department’s decision on Labor Law §240(1) holding that there were questions of fact regarding whether the staircase provided adequate protection. In reaching its decision, the Court of Appeals commented that to the extent the First Department’s decision can be “read to say that a statutory violation occurred merely because plaintiff fell down stairs, it does not provide an accurate statement of the law.” It further noted “the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law §240(1).” Significantly, the Court of Appeals also found that the competing expert opinions raised an issue of fact as to whether or not proper protection was provided. The Court stated, “[h]ere, by contrast, there are questions of fact as to whether the staircase provided adequate protection. As noted above, defendants’ expert opined that the staircase was designed to allow for outdoor use and to provide necessary traction in inclement weather. Moreover, defendants’ expert opined that additional anti-slip measures were not warranted. In addition, he disputed the assertions by plaintiff’s expert that the staircase was worn down or that it was unusually narrow or steep. In light of the above, plaintiff was not entitled to summary judgment on the issue of liability.” The Court of Appeals let the First Department’s decision stand regarding Labor Law §241(6) finding that the plaintiff’s failure to cross-appeal from the First Department’s decision rendered the issue unreviewable.
O’Brien v. The Port Auth. of N.Y. and N.J. et al., — N.E.3d —, 29 N.Y.3d 27, 2017 WL 1166795 (2017)
In a decision dated March 24, 2017, Justice Charles M. Troia granted summary judgment dismissing the plaintiff’s complaint and all cross-claims against our client, defendant CCA Civil, Inc., as a matter of law. Plaintiff, the operator of a motor vehicle, claims he was injured in a car accident in which the co-defendant rear ended his vehicle in a construction zone located on the Staten Island Expressway in Staten Island, New York. It is alleged that CCA was negligent in, among other things, the maintenance and protection of traffic on the subject roadway. In support of its summary judgment motion, CCA argued that it implemented, deployed and maintained the work zone traffic control plan in accordance with the State of New York’s plans, approvals and specifications as set forth in the contract between the State and CCA. It also argued that the plans and specifications upon which it relied and implemented were not so defective on their face that it was unreasonable for CCA to rely upon them. The evidence established that the work zone traffic control plan implemented by CCA at the time of the accident was proper for the location. Moreover, the testimony of the plaintiff and co-defendant established that the work zone traffic control plan did not create a dangerous condition and CCA’s work was not the proximate cause of the plaintiff’s accident. After oral argument on the motion, the Court granted CCA summary judgment because opposing counsel failed to raise any issue of fact that would have resulted in a denial of the motion.
Puccio v. John Denora et al., Index No. 101313/2014 (Richmond Co. Sup. Ct., Mar. 24, 2017)
In a decision dated February 21, 2017, Justice James E. d’Auguste granted summary judgment dismissing the third-party action for common law and contractual indemnification against our client, WJL Equities. The plaintiff allegedly tripped over a raised/uneven sidewalk flag while walking in front of the New York Public Library on the Upper East Side of Manhattan thereby sustaining personal injuries. He subsequently brought suit against various defendants, one of whom impleaded WJL based upon its contract to perform sidewalk restoration work in the area. On summary judgment, WJL argued that the flags it installed were adjacent to the misleveled flag. In granting summary judgment to WJL, the Court held that WJL had met its burden of establishing that it did not perform work on the sidewalk flag that contained the alleged defect. The Court considered the arguments made in opposition by the third-party plaintiff and found them to be without merit.
Althofer v. City of New York et al., Index No. 112806/2011 (N.Y. Co. Sup. Ct., Feb. 21, 2017)