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)
On April 19, Stephen M. Cohen and Thomas J. Hall lectured at a virtual seminar for El Sol/DeFoe JV entitled “Best Practices for Post-Accident Investigation”.
On April 14, Stephen M. Cohen and Thomas J. Hall lectured at a virtual seminar for Holt Construction entitled “Best Practices for Post-Accident Investigation”.
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)
On December 17, Stephen M. Cohen and John V. Fabiani lectured at a virtual seminar for Berkshire Hathaway Specialty Insurance entitled “An Overview of New York Labor Law §§200, 240(1) and 241(6)”.
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)