Firm News

Plaintiff Who Allegedly Fell 50 Feet From Marine Parkway Bridge Through an Opening in Containment Tarp Was Denied Summary Judgment on Labor Law §§240(1) and 241(6) Claims

In a decision dated August 3, 2021, the Honorable Timothy J. Dufficy of Queens County Supreme Court held that plaintiff Artur Cesar was not entitled to summary judgment pursuant to Labor Law §§240(1) and 241(6) despite having fallen 50 feet from a bridge into the water below. In his complaint, plaintiff alleged that on August 3, 2017, he was lawfully working for Kiska Construction, Inc. on the Marine Parkway Bridge in Rockaway performing various painting duties when he fell through an opening in the tarp and into the water below, a height of approximately 50 feet. Following the close of discovery, plaintiff moved for summary judgment pursuant to CPLR 3212 on his Labor Law §§240(1) and 241(6) claims against our client, the Triborough Bridge and Tunnel Authority (“TBTA”). Judge Dufficy initially found that plaintiff had established a prima facie case in support of his Labor Law §240(1) claim. As per the plaintiff’s deposition testimony, he demonstrated that the defendant failed to provide him with an adequate safety device while he was working at an elevation and that this failure was a proximate cause of his injuries. Specifically, plaintiff established that, while he was performing various bridge painting duties, he lost his balance and fell through an opening in the tarp and into the water below, causing him to become injured. Plaintiff further established that he was not provided with proper protection because there was no safety cable for him to tie off to in the area where he was working at the time of the accident.

Ultimately, Judge Dufficy held that in opposition to the plaintiff’s motion on his Labor Law §240(1) claim, the defendant raised a triable issue of fact “whether it provided the plaintiff with proper protection.” Specifically, the defendant obtained an affidavit from Safety Director Brian Van Westervelt who averred that the tarp in the area was completely closed and there were no openings through which the plaintiff could have fallen. He further stated there was a safety cable spanning the area that was in easy reach of the plaintiff and onto which he could have easily clipped his lanyard. The Court also found credible and persuasive the affidavit of site safety expert, Martin Bruno, who responded to the accident site and conducted an inspection mere days after the accident occurred. Mr. Bruno was able to state from personal knowledge and clear photographs that there was indeed a proper safety cable in the area where plaintiff was working at the time of his accident. Thus, the Court denied plaintiff’s motion for summary judgment on his Labor Law §240(1) cause of action.

Turning to plaintiff’s claim pursuant to Labor law §241(6), summary judgment was also denied. In support of his §241(6) claim, plaintiff alleged a violation of Industrial Code Rule 12 NYCRR 23-1.7(b)(1) which provides: “Every hazardous opening into which a person may step or fall shall be guarded by a substantial cover fastened in place by a safety railing constructed and installed in compliance with this Part (rule).” Although the Courts have held this provision to be specific enough to support liability and plaintiff established a prima facie case that it was violated, we again raised an issue fact. In support of the defendant’s opposition papers, Mr. Westervelt averred in a sworn affidavit that the tarp in the area where plaintiff was working at the time of his accident was completely closed and there were no openings through which he could have fallen. In sum, as there were issues of fact on both Labor Law §§240(1) and 241(6) claims, summary judgment in plaintiff’s favor was not warranted and his motion was denied.

Artur Cesar v. Triborough Bridge and Tunnel Authority, Index No. 700217/18 (Sup. Ct. Queens Co., Aug. 3, 2021)

Court Dismisses Plaintiff’s Labor Law §200 and Common Law Negligence Claims as to Owner and Awards Owner Summary Judgment Against Plaintiff’s Employer on its Breach of Contract and Contractual Indemnity Claims in Construction Accident Case

In a decision dated April 26, 2021, the Honorable Lucindo Suarez of Bronx County Supreme Court granted our client EIB Flatbush LLC’s (“EIB”) motion for summary judgment, seeking (i) dismissal of the plaintiff’s Labor Law §200 and common law negligence claims against it, (ii) judgment as against Blink Holdings, Inc. d/b/a Blink Fitness (“Blink”) for contractual indemnity, inclusive of attorneys’ fees, costs and expenses, (iii) judgment as against Blink for breach of contract for the failure to make its self-insured retention available to EIB, (iv) judgment as against Blink for breach of contract for the failure to procure insurance and (v) for dismissal of all cross-claims and counter-claims against EIB. The plaintiff, an employee of third-party defendant, Atlantic State Development (“ASD”), was injured while supervising the unloading of a shipment of vinyl tiles to be used in connection with the fit out of the Blink gym located at 833 Flatbush Avenue. EIB was the owner of the premises and it leased the entire second floor and a portion of the first floor to Blink. Blink retained ASD to act as the general contractor in connection with the renovation of its leasehold. Pursuant to the terms of the lease, Blink was required to indemnify EIB for any claims “arising, directly or indirectly, out of from or on account of any occurrence in, at, upon or from the Demised Premises or occasioned wholly or in part through the use and occupancy of the Demised Premises by [Blink].” Blink contended that because the accident occurred in the street, where the truck making the delivery had parked, its indemnification obligations were not triggered. We argued that Blink’s interpretation of the indemnification provision was overly narrow and that, pursuant to the terms of the lease, EIB was entitled to indemnification because at the time of the accident the plaintiff was working on the build out of Blink’s leasehold for which Blink had been retained by contract. Therefore, the alleged accident clearly “arose out of” and was “occasioned by” Blink’s use and occupancy of the premises, thereby triggering its indemnity obligations. In terms of EIB’s breach of contract claim against Blink, we argued that Blink breached its obligations under the lease both because it refused to make its $250,000 self-insured retention available to EIB and because it obtained $1 million in commercial general liability coverage and $25 million in excess coverage as opposed to the $5 million in commercial general liability coverage required by the lease. The Court agreed with the arguments set forth in our motion dismissing the plaintiff’s Labor Law §200 and common law negligence claims against EIB, granting judgment in EIB’s favor on its breach of contract claim against Blink and awarding it unconditional contractual indemnity, inclusive of attorney’s fees, costs and expenses from Blink.

Nicholas Uzzilia v. Jo-Tone Carpet, Inc. et al., Index No. 23858/2016E (Sup. Ct. Bronx Co. Apr. 16, 2021)

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)