In a decision dated June 14, 2022, the Appellate Division reversed the Order of the Supreme Court, New York County and denied the plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim against our client, DOLP 205 Properties II LLC, the landowner. The plaintiff, a plasterer employed by non-party Varanos Group Inc. QCC, allegedly fell when a screw came out of one of the stilts he wore to apply drywall compound to a 10-foot ceiling. On appeal, the First Department held that, given the nature of the work that the plaintiff was performing at the time of his accident, his one-to-four foot fall presented a physically significant elevation within the meaning of Labor Law § 240(1), but there were issues of fact and credibility whether the plaintiff’s assigned task at the time of the alleged accident involved an elevation-related hazard that implicates statutory protection.
Defendant submitted evidence from the plaintiff’s boss, including an affidavit and a transcript of his Workers’ Compensation Board testimony, that he specifically told plaintiff he was not permitted to use stilts and was instead to work only on the ground level. At deposition, plaintiff acknowledged that his boss gave him his initial assignment that day but denied any prohibition on using stilts; plaintiff contended that, when he arrived at his assigned work area, a Varanos supervisor named “Julio” directed him to work on stilts. The First Department held that, evidence that the plaintiff’s boss specifically instructed him to only work on the ground level and not to use stilts raised triable issues of fact whether plaintiff’s duties were expressly limited to work that did not expose him to an elevation-related hazard within the purview of Labor Law § 240(1), and there were issues of fact and credibility whether any such orders were “superseded” by instructions from the alleged Varanos supervisor “Julio” because the plaintiff’s boss denied that Varanos employed anyone named Julio and/or that he authorized this person to oversee the plaintiff’s work.
Christina Gonzalez v. DOLP 205 Properties, LLC et al., — N.Y.S.3d —-, 2022 WL 2124862 (1st Dep’t 2022)
In a decision dated June 9, 2022, the Hon. Diccia T. Pineda-Kirwan of Nassau County Supreme Court granted the motion for summary judgment brought by our client, Haugland Energy Group, LLC (“Haugland”), seeking dismissal of the plaintiff’s negligence claim against it and dismissal of all of co-defendant PSEG Long Island, LLC’s (“PSEG”) cross-claims. This subrogation action arises out of a fire that occurred on November 25, 2018 at a residence in East Hampton, New York. It is undisputed that the fire was caused by an energized neutral on the utility lines near the home which caused an electrical overload which in turn caused the wiring in the basement of the home to ignite. Prior to the date of the fire, PSEG had hired Haugland to perform storm hardening work across Long Island, including on the circuit servicing the home of plaintiff’s subrogee. Haugland last performed work on the pole at issue 16 days before the fire. The plaintiff alleged that Haugland either negligently performed its work, which lead the insulation around the neutral to break, or that it negligently failed to detect that the insulation was deteriorated. PSEG alleged that it was entitled to either common law or contractual indemnity from Haugland since Haugland deviated from prudent utility practices by failing to replace the damaged portion of wire. PSEG also claimed that it was entitled to coverage as an additional insured under Haugland’s insurance policies pursuant to the terms of the relevant contract.
The Court agreed with our argument that Haugland, having contracted with PSEG, did not owe the plaintiff’s subrogor a duty of care. Further, the Court found that, even if Haugland did owe the plaintiff a duty of care, Haugland could not be held liable for the fire inasmuch as any argument that Haugland was negligent was purely speculative. In terms of PSEG’s cross-claims, the Court agreed with our argument that Haugland did not owe PSEG indemnification either pursuant to the terms of the contract or under the common law given that Haugland was not negligent. Further, the Court rejected PSEG’s arguments with respect to ‘prudent utility practices’ given that Haugland was not hired to inspect the utility lines and performed its work pursuant to the plans generated by PSEG.
Nat’l Gen. Ins. Co. a/s/o Kevin Bishop v. PSEG Long Island, LLC et al., Index No. 615442/2019 (Sup. Ct. Nassau Co. Jun. 9, 2022)
a decision dated April 27, 2022, the Appellate Division, Second Department reversed
the Order of the Supreme Court, Queens County and denied plaintiff’s motion for
summary judgment on his Labor Law §240(1) cause of action against our clients, City
of New York, New York City Department of Transportation, New York City School
Construction Authority and the Comptroller of the City of New York. The plaintiff, a roofer employed by non-party,
Kel-Tech Construction, allegedly fell from an extension ladder at a public high
school while renovating a bulkhead on the roof.
The plaintiff moved for summary judgment on liability pursuant to Labor
Law §240(1). On appeal, the Second
Department determined that the plaintiff established prima facie
liability under Labor Law §240(1) by submitting evidence demonstrating that he
was provided with an extension ladder that was secured only on the right side
and, as he began to descend the ladder from the roof of the bulkhead to the
roof of the school, the ladder shifted to the right and backwards, causing him
to fall approximately 12 to 13 feet onto the roof of the school. In opposition,
the defendants raised a triable issue of fact regarding whether the ladder
shifted to the right and backwards, as the plaintiff testified, or whether the
plaintiff’s own actions were the sole proximate cause of the accident. The
defendants submitted an affidavit from the plaintiff’s supervisor, who averred
that the plaintiff had told him, just after the accident occurred while he was
still on the roof, that he had lost his balance as he descended the ladder and
jumped off the ladder. In reaching its decision to reverse the lower court and
deny summary judgment to the plaintiff, the Second Department found that
different versions of the accident given by the plaintiff created triable issues
of fact that required a denial of the motion, including a triable issue of fact
as to the plaintiff’s credibility.
Andrezj Jurski v. City of New York et al., 204 A.D.3d 983, 165 N.Y.S.3d 371 (2d Dep’t 2022)
In a decision dated March 23, 2022, the Appellate Division, Second Department affirmed the Supreme Court’s denial of plaintiff’s motion to set aside the jury verdict on the issue of liability on his Labor Law §240(1) cause of action and for judgment as a matter of law in his favor on that cause of action. The plaintiff, employed as a job-site superintendent by the general contractor on a construction project, was allegedly injured when a temporary barricade fell over on top of him. The plaintiff alleged a violation of Labor Law §240(1) against, among others, our clients, FC Yonkers Associates, LLC and Express, LLC, the property owner and commercial tenant, respectively. Following a jury trial, the jury found in favor of the defendants, concluding that plaintiff’s actions were the sole proximate cause of his accident. There was evidence that shortly after the accident, the plaintiff reportedly told his employer that he removed the supports for the barricade causing it to fall over. In light of the evidence presented at trial, the Second Department affirmed the jury verdict holding that “there was a valid line of reasoning and permissible inferences which could have led a rational jury to conclude that it was [plaintiff’s] own conduct in removing the bracing… rather than any violation of Labor Law §240(1), that was the sole proximate cause of his alleged injuries.
Scott Petersen et al. v. Forest City Ratner Companies, LLC et al., 203 A.D.3d 1093, 162 N.Y.S.3d 785 (2d Dep’t 2022)