Firm News

Court Dismisses Plaintiff’s Complaint as to Out-of-Possession Landlord in Case Involving a Trip and Fall Over a Temporary Aluminum Floor Tile

In a decision dated March 12, 2021, the Honorable Richard G. Latin of Supreme Court, New York County granted summary judgment on behalf of our clients, defendants 369 Lexington Borrower, LLC and 369 Lexington Borrower II, LLC (“369 Lex”), dismissing all claims against them as a matter of law. The action involved an alleged trip-and-fall within the fourth floor tenant space of California Cryobank, the plaintiff’s employer. Our clients are the owners of the commercial property located at 369 Lexington Avenue. Plaintiff brought claims asserting that the premises defect – a temporary aluminum floor tile – was related to a construction project ongoing in the space. Plaintiff further claimed that by virtue of monitoring the construction project and maintaining an office in the building, 369 Lex transformed into “in-possession” landlords. The Court rejected plaintiff’s claims in their entirety. The Court found that the tile was solely installed by the tenant/employer, and 369 Lex’s periodic presence in the space was insufficient to qualify them as in-possession landlords. These facts coupled with the terms of the lease led the Court to conclude that 369 Lex was an out-of-possession landlord with no duty to repair or maintain the premises. Accordingly, the Court found that 369 Lex did not owe a duty to plaintiff for the defective aluminum tile and dismissed all claims against them.

Diane Moran v. 369 Lexington Borrower II LCC et al., Index No. 160376/2015 (Sup. Ct. N.Y. Co. Mar. 12, 2021)


Court Dismisses Labor Law Complaint In Its Entirety Where Plaintiff Was Allegedly Injured When A Portion Of The Wall He Was Demolishing Fell Onto Him

In a decision dated January 4, 2021, the Honorable Ingrid Joseph of the Kings County Supreme Court granted our client A & F Commercial Builders, LLC’s (“A & F”) motion for summary judgment, seeking (i) dismissal of the plaintiff’s Complaint, including his Labor Law §§ 240(1), 241(6) and 200/common-law negligence claims, (ii) dismissal of the third-party claims of defendant/third-party plaintiffs Sands Brook, LLC, The Stop & Shop Supermarket Company, LLC and Ahold U.S.A., Inc. (collectively, “premises owner”) for common-law indemnification and contribution, and (iii) judgment as against DGC Capital Contracting Corp. (“DGC”), the plaintiff’s employer, on A & F’s third-party claim for contractual indemnification.  As part of remediation work following Hurricane Sandy, the plaintiff carpenter was removing drywall from a portion of a wall in a kitchen at the Shop & Shop supermarket at 1710 Avenue Y in Brooklyn, New York.  The plaintiff alleged that a piece of tile/drywall fell from above the cut line (that is, the portion of the wall that was scored for removal) and cut his forearm.  The Court held that A & F established that Labor Law § 240(1) was not applicable because the piece of tile/drywall that allegedly fell had become a permanent part of the building’s structure and, in any event, the statute was not violated because the alleged accident did not occur under circumstances in which a securing device of the kind enumerated under the statute would have been necessary or even expected.  Specifically, A & F submitted evidence that the tile and drywall were so strongly affixed to the studs that the plaintiff had to use hammers and crowbars to remove the tile/drywall from the portion of the wall he was demolishing and there was no objective evidence that the tile/drywall above the cut line was affected by his activities.  The Court held that A & F established that Labor Law § 241(6) was not violated because the cited Industrial Code regulations pertained to securing devices but A & F established there was no foreseeable need for the upper portion of the wall to be secured under these circumstances.  The Court held that A & F established its entitlement to dismissal of the plaintiff’s Labor Law § 200 and common-law negligence claims because it did not have actual or constructive notice of any alleged defective condition in the subject wall.  The Court granted dismissal of the premises owner’s claims for common-law indemnification and contribution as against A & F because A & F proved that it was not actively negligent.  The Court also granted A & F summary judgment on its contractual indemnity claim as against DGC to the extent that it is not covered by the additional insurance policy that DGC procured for A & F.

Kevin Coward v. Sands Brook, LLC, et al., Index No. 17248/2013 (Kings Co. Sup. Ct. Jan. 4, 2021)


Court Finds That Contract Provision Requiring Indemnity for Claims “Arising Out Of” the Work is Triggered Where Third-Party Defendant Returns to Work Site to Resolve a Contract Dispute

In a decision dated November 24, 2020, the Honorable Frederick D.R. Sampson of Queens County Supreme Court awarded our clients Urban Foundation (“Urban”) summary judgment dismissing the plaintiff’s Labor Law §§200 and 241(6) claims against it, and our clients 33 Bond GC LLC (“Bond GC”), 33 Bond St. LLC (“Bond LLC”) and TF Cornerstone (“Cornerstone”) summary judgment dismissing the plaintiff’s Labor Law §200 claim against them. The plaintiff’s only surviving claim was his Labor Law §241(6) claim against 33 Bond GC, Bond LLC, and Cornerstone.  The Court also granted our motion for summary judgment on their behalf against the third-party defendant, Gramercy Group, Inc. (“Gramercy”), for contractual indemnification.  As part of a construction project, 33 Bond GC hired Gramercy to demolish a parking garage.  The contract required Gramercy to leave behind a certain amount of debris.  Gramercy finished its demolition work, but 33 Bond GC and Gramercy disputed whether Gramercy had left the correct amount of debris at the site.  On the day of the accident, representatives of 33 Bond GC and Gramercy went to the site to resolve the dispute.  The plaintiff’s accident occurred when, while walking the site, he was struck by an excavator operated by Urban.  The contractual indemnity provision in 33 Bond GC’s contract with Gramercy required it to indemnify the third-party plaintiffs for all claims which “arise out of” or are “connected with . . . the performance of the work.”  Gramercy contended that because it had finished its demolition work the accident did not arise out of its work.  We argued that Gramercy’s interpretation of the indemnity provision was overly narrow, and that under controlling New York law, its indemnity obligation was triggered because at the time of the accident the plaintiff was employed by Gramercy and he was performing work for Gramercy that 33 Bond GC had hired it to perform.  Therefore, the plaintiff’s accident “arose out of” and was “connected with” the performance of Gramercy’s work, thereby triggering its indemnity obligation.  The trial court agreed and granted 33 Bond GC, Bond LLC and Cornerstone summary judgment on their third-party claims against Gramercy for contractual indemnification.   

Joseph Cianciulli v. Urban Foundation/Engineering, LLC, et al., Index No. 707630/2020 (Queens Co. Sup. Ct. Nov. 24, 2020)  


Court Dismisses Third-Party Action in its Entirety Against Our Mechanical Contractor Client in Case Involving Plaintiff’s Fall From a Ladder

In a decision dated November 18, 2020, the Honorable Carol R. Edmead of the New York County Supreme Court granted our client third-party defendant Fresh Meadow Chiller Services, LLC’s (‘Fresh Meadow”) motion for summary judgment dismissing the third-party action by defendant New York Society for the Relief of the Ruptured and Crippled, Maintaining the Hospital for Special Surgery (“HSS”), including those claims for contractual and common law indemnification, contribution and breach of contract for the failure to procure insurance. HSS owns a hospital located at 535 East 70th Street, New York, New York. Through a Preventative Maintenance Agreement HSS engaged Fresh Meadow to provide maintenance of two large industrial chillers which provided cold water to the MRI machines in the hospital. Plaintiff, a technician employed by Fresh Meadow, alleges that he slipped and fell while descending a ladder from which he cleaned the chiller coils. The Court held that Fresh Meadow demonstrated its entitlement to summary judgment on HSS’s common law indemnification and contribution claims against it because plaintiff did not sustain a grave injury within the meaning of Workers’ Compensation Law Section 11. With regard to HSS’s breach of contract claim against Fresh Meadow, the Court held that the limitation of liability provision of the Preventative Maintenance Agreement did not confer an obligation by Fresh Meadow to procure insurance for HSS’s benefit, but in any event, the policy submitted by Fresh Meadow showed that it procured the insurance it was required to procure. The Court held that HSS failed to demonstrate entitlement to summary judgment on its contractual indemnity claim against Fresh Meadow because there was no language in the Preventative Maintenance Agreement which evinced a clear intent to indemnify HSS. In sum, the Court dismissed the third-party action against Fresh Meadow in its entirety as a matter of law.

Louis Mazzarisi v. New York Society for the Relief of the Ruptured and Crippled, Maintaining the Hospital for Special Surgery, Index No. 155022/2016 (N.Y. Co. Sup. Ct. Nov. 18, 2020)


Partner John Fabiani and Associate Jordan Meisner Obtain Summary Judgment on Appeal Dismissing Case as a Matter of Law

In a decision dated October 28, 2020, the Appellate Division, Second Department reversed denial of our summary judgment motion dismissing the complaint and all cross-claims as to our client, Vixxo Corporation.  The plaintiff was injured when a newly installed automatic door closed on her while she was exiting a Michael’s Store in Brooklyn, New York.  Vixxo had a master service agreement with Michael’s but was not notified of the broken door until after the accident, at which time it arranged to have the door repaired.  The Supreme Court denied our motion as premature.  The Second Department reversed, finding that Vixxo had demonstrated its prima facie entitlement to judgment by demonstrating, through its submissions, that it owed no duty of care to the plaintiff.  The parties opposing the motion failed to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition were exclusively within our client’s knowledge and control.  The complaint and all cross-claims were dismissed.

Arlene Braddy v. Related Companies, et al., 187 A.D.3d 1120, 131 N.Y.S.3d 239 (2d Dep’t 2020)


Court Dismisses Labor Law Complaint In Its Entirety Against Defendants Where Plaintiff Was Injured When He Fell Into An 18 Inch Elevator Pit While Pulling a Dolly

In a decision dated May 14, 2020, the Hon. Margaret A. Chan of the New York County Supreme Court dismissed the plaintiff’s entire complaint, which alleged causes of action pursuant to Labor Law §§240(1), 241(6), 200 and for common law negligence against our clients, NYY Steak Manhattan, LLC (“NYY Steak”) and Plaza Construction Corp. (“Plaza”). The plaintiff, a steamfitter, employed by Day & Nite Refrigeration, alleged that he sustained personal injuries when he was transporting a refrigeration unit at a renovation project. NYY Steak was the lessee of the property and it retained Plaza as the construction manager for the project. The plaintiff alleged that he was walking backwards while pulling a dolly which held a refrigeration unit, as his co-worker was pushing the cart. While doing so, the plaintiff stepped on a piece of wood and then fell into an elevator pit that was 18 inches deep. The Court dismissed the plaintiff’s Labor Law §240(1) claim. It held that this section did not apply to the plaintiff’s fall into an 18 inch hole as he was performing his assigned task of delivering a refrigeration unit while pushing a cart. The Court also dismissed the plaintiff’s §241(6) claim on the ground that none of the Industrial Code Rules alleged by the plaintiff applied. Additionally, the Court dismissed the plaintiff’s Labor Law §200 and common law negligence claims based on the absence of any evidence that NYY Steak or Plaza supervised or controlled the injury-producing work or that it created the alleged dangerous condition or had notice of it prior to the accident.

Kevin McGonigal v. NYY Steak Manhattan, LLC, et al., Index No. 158327/2013 (N.Y. Co. Sup. Ct. May 14, 2020)