Firm News

In Construction Accident Cases Involving Two Injured Plaintiffs, Court Awards Defendants Summary Judgment on Contractual Indemnity Claims, Dismisses Plaintiffs’ Labor Law §200 and Common Law Negligence Claims, Dismisses All Counterclaims and Denies Plaintiffs’ Motions for Summary Judgment on their Labor Law §240(1) Claims

In two decisions dated October 25, 2018, involving two related cases involving the same construction accident, the Hon. David T. Reilly granted our clients, Whole Foods Market Group, Inc. and Construction Management & Builders, Inc., summary judgment dismissing the plaintiffs’ Labor Law §200 and common law negligence claims as well as all counterclaims against them. The Court awarded our clients summary judgment on their contractual indemnity claims against the third-party defendant. Additionally, the Court denied the plaintiffs’ cross-motions for summary judgment on their Labor Law §240(1) claims. At the time of the accident, the plaintiffs were performing sheet-metal deck installation work as employees of the third-party defendant, Piermount Iron Works, Inc., who instructed and directed the plaintiffs’ work and provided them with the tools and equipment to perform the sheet-metal decking work. Piermount erected a safety cable on the second floor of the structure where the decking was being installed and provided the plaintiffs with safety harnesses to attach to the safety line. Plaintiffs were going to use a torch to cut a notch into a piece of decking to install it into place. As the piece of decking was about to be cut, the decking collapsed.

The two related cases were consolidated and separate summary judgment motions were made in each case. We moved to dismiss the plaintiffs’ Labor Law §200 and common law negligence claims against the defendants because the accident arose out of the means and methods by which the plaintiffs were performing their work for their employer, Piermount. The Court agreed and dismissed the §200 and common law negligence claims against our clients in each case. Moreover, the Court dismissed all counterclaims against our clients because it determined they were not negligent as a matter of law, did not breach any contractual agreement to procure insurance and were not contractually obligated to indemnify any party. Our clients also moved for summary judgment on their contractual indemnity claims against Piermount based on the contract which provided for indemnification for bodily injury to Piermount employees “arising out of, resulting from, connected to or relating to the performance or non-performance of the Work.” In both cases, the Court granted summary judgment on our clients’ contractual indemnity claims against Piermount on the grounds that the plaintiffs’ injuries arose out of or were related to the performance of their work for Piermount. Furthermore, both plaintiffs served improper cross-motions seeking summary judgment on their Labor Law §240(1) claims on the grounds that they were not provided with adequate safety devices to perform their work at an elevation. However, because the plaintiffs filed their respective motions after the 120-day post-note of issue deadline, we argued that the plaintiffs’ motions only pertaining to Labor Law §240(1), which was not even addressed in our clients’ timely summary judgment motions, were untimely without any justification or excuse and should not be considered. The Court agreed and denied the plaintiffs’ untimely motions seeking summary judgment on their §240(1) claims. Accordingly, our clients’ motions were granted in their entirety and the plaintiffs’ cross-motions were denied in their entirety.

Roger Schwarting v. Whole Foods et al., Index No. 003756/14 (Suffolk Co. Sup. Ct., Oct. 25, 2018);

Donald Swital v. Whole Foods et al., Index No. 003757/14 (Suffolk Co. Sup. Ct., Oct. 25, 2018)


Court Denies Plaintiff Summary Judgment on Labor Law §240(1) Claim Based on His Account of Accident in Physician’s Affidavit and Medical Records

In a decision dated July 20, 2018, the Hon. Lucindo Suarez denied plaintiff’s motion for partial summary judgment on his Labor Law §240(1)claim against our clients, LV Queens Group LLC and Artec Construction and Development Corp. The plaintiff, a Green Grounds Inc. laborer, working on the Borough Place Project in Woodside, New York, claims he fell 18 to 20 feet to the ground from a ladder that was placed on top of a scaffold. The fall was witnessed by his co-worker.  In opposition to the plaintiff’s motion, the defendants submitted an affidavit from a physician’s assistant at Weill Cornell Medical Center along with medical records containing the plaintiff’s admission as recorded by the physician’s assistant. Plaintiff’s medical records from Elmhurst Hospital were also submitted.  Based on the affidavit and medical records, the plaintiff reportedly stated the following: that he twisted his foot and fell, that he unknowingly stepped into a ditch and that he tripped on a pothole while walking in the street. In light of these statements, the defendants argued that there was a triable question of fact regarding the plaintiff’s account of the accident. The Court agreed and denied plaintiff’s motion.

Luis Fernandez v. LV Queens Group LLC et al., Index No. 302651/12 (Bronx Co. Sup. Ct., July 20, 2018)


Court Dismisses Plaintiff’s Complaint Against Contractor in Construction Accident Case

In a decision dated July 9, 2018, the Hon. R. Bruce Cozzens, Jr. granted our client, Skanska USA Building Inc., summary judgment dismissing the plaintiff’s complaint in its entirety as a matter of law. The plaintiff commenced this action alleging personal injuries as the result of a trip and fall on a construction project. It is alleged that the defendant was negligent for allowing debris to be on the job site and for failing to properly illuminate the job site.  Additionally, the plaintiff alleged violations of Labor Law §§200, 240 and 241(6).  In support of its summary judgment motion, Skanska asserted that the plaintiff’s conduct was the sole proximate and superseding cause of his accident. It argued that, contrary to plaintiff’s claims, he was not walking through a passageway, but rather, chose to walk through a planter located under a stairway instead of walking around it. Further, the plaintiff did not oppose Skanska’s motion to the extent of dismissing the causes of action for common law negligence and violations of Labor Law §§240 and 241(6), with the exception of the alleged violations of Industrial Code Rules 23-1.7(e)(1) and (2) and 23-2.1(a)(1), claiming that the planter was actually a passageway. In reaching its decision to dismiss the complaint, the Court determined that the plaintiff’s choice to walk through a planter, rather than walk around it, was the sole and superseding proximate cause of his injuries.

Carl Fumia v. Skanska USA Building Inc., Index No. 606950/14 (Nassau Co. Sup. Ct., July 9, 2018)


Court Awards Summary Judgment to Owner and Contractor on Both Contractual and Common Law Indemnity Claims, Dismisses the Plaintiff’s Labor Law §200 and Common Law Negligence Claims and Denies the Plaintiff’s Motion for Summary Judgment on His Labor Law §241(6) Claims

In a decision dated June 29, 2018, the Hon. Robert A. Bruno granted our clients, Whole Foods Market Group, Inc. and Construction Management & Builders, Inc., summary judgment dismissing the plaintiff’s common law negligence and Labor Law §200 claims as well as all counterclaims against them. The Court  also awarded our clients summary judgment on their contractual and common law indemnity claims against the third-party defendants. Furthermore, the Court denied the plaintiff’s cross-motion for summary judgment on his Labor Law §241(6) cause of action. At the time of the accident, the plaintiff was performing steel beam installation work as an employee of the second third-party defendant, Piermount Iron Works, Inc. He was seated on a horizontal steel beam, one end of which was attached to a vertical column, while the other end was held by a crane. While the plaintiff was seated on the beam, he attempted to attach the end held by the crane to a vertical column when the beam swung upward and the plaintiff struck another beam that was approximately five feet above him.

Whole Foods and Construction Management moved to dismiss the common law negligence and Labor Law §200 claims against them because the accident arose out of the means and methods by which the plaintiff was performing his work for his employer, Piermount. The Court agreed and dismissed the Labor common law negligence and Labor Law §200 claims against our clients. Moreover, the Court also dismissed all counterclaims against our clients because it determined that they were not negligent as a matter of law. Whole Foods and Construction Management also moved for summary judgment on their contractual indemnity claims against the plaintiff’s employer, Piermount, based on the contract which provided for indemnification for bodily injury to a Piermount employee “arising out of, resulting from, connected to or relating to the performance or non-performance of the Work.” The Court granted summary judgment the contractual indemnity claims against Piermount because the plaintiff’s injury arose out of or was related to the performance of his work. Whole Foods and Construction Management also moved for summary judgment on their common law indemnity claims against the crane operator, JV Trucking & Rigging, LLC. They argued that JV Trucking & Rigging, LLC was negligent because its crane operator continued to hoist the beam upward while the plaintiff was on it despite the fact that the crane operator was aware that there was already significant weight on the beam. In support of the common law indemnity claims, Whole Food and Construction Management submitted the affidavit of a crane operation and safety expert who opined that the rapid, sudden and jumping movement of the beam was due to a significant amount of preexisting tension and that the continued raising of the beam caused it to suddenly jump upward. Accordingly, the Court found that Whole Foods and Construction Management established prima facie negligence on the part of JV Trucking & Rigging, LLC and awarded our clients summary judgment on their common law indemnity claims.

Furthermore, the plaintiff served a cross-motion seeking summary judgment on his Labor Law §241(6) cause of action predicated upon Industrial Code Rules §23-2.3(a)(1) (structural steel members shall not be forced into place), §23-8.1(f)(5) (mobile cranes, tower cranes and derricks shall not hoist, lower, swing or travel while any person is located on the load or hook) and §23-8.1(f)(2) (there shall be no sudden acceleration or deceleration of the moving load unless required by emergency conditions). In opposition, Whole Foods and Construction Management argued that there was a question of fact regarding the plaintiff’s comparative negligence, i.e., the plaintiff disregarded instructions to pause the work and get off the beam and remained on the beam, continued trying to wedge the beam into place and improperly signaled the crane operator to lift the load. The Court denied the plaintiff’s cross-motion seeking summary judgment on his Labor Law §241(6) cause of action due to issues of fact regarding the plaintiff’s comparative negligence. Accordingly, our clients’ motion was granted in its entirety and the plaintiff’s cross-motion was denied in its entirety.

James Brooks v. Whole Foods et al., Index No. 600708/13 (Nassau Co. Sup. Ct., June 29, 2018)


First Department Affirms Lower Court’s Decision Which Denied Plaintiff Summary Judgment on Labor Law §240(1) Claim Against MTA and Contractor Based on Issue of Fact Regarding Plaintiff’s Account of Accident

In a decision dated June 12, 2018, the Appellate Division, First Department affirmed Justice Kathryn E. Freed’s May 16, 2017 decision which denied plaintiff’s motion for summary judgment pursuant to Labor Law §240(1) against our clients, the Metropolitan Transportation Authority and Judlau Contracting, Inc. In the lower court, the plaintiff previously moved to reargue and the motion was denied. The plaintiff, a Union Local 3 electrician working on the MTA’s Second Avenue Subway Construction Project, claims that he fell 20 feet into a shaft and landed on his back. A few days before the accident a bricklaying subcontractor allegedly removed a wood guardrail system from the perimeter of the shaft and built a new wall, leaving a portion of the shaft exposed. A 2×4 was allegedly wedged between the new wall and an old wall to create a guardrail in front of the shaft. The 2×4 was nailed into a vertical post (another 2×4) affixed to the old wall, but it was not secured in any way to the new wall. Plaintiff alleges that he leaned on the guardrail, it dislodged and he fell into the shaft. The fall was not witnessed; although, he was found a short while after by his partner who helped plaintiff climb out of the shaft.

In opposition to the plaintiff’s motion, the defendants submitted testimony from an expert radiologist and expert biomechanical engineer, and argued there is no evidence plaintiff sustained an acute trauma as he claimed and that there was a triable question of fact with regard to plaintiff’s account of the accident. In his affidavit, the defendants’ expert radiologist attested that there was no evidence of a traumatic injury to the body parts allegedly injured based on various radiological studies taken shortly after the accident (X-rays and MRIs were taken within one week of the alleged occurrence). He testified that there was significant evidence of degeneration to the allegedly injured body parts already present at the time of the accident and no evidence of any acute trauma. The biomechanical engineer testified that had plaintiff fallen 25 feet as he claimed (or even just 10 feet, which was the distance from the floor to the 4x4s he was found upon), he would have been expected to sustain severe traumatic injuries. The biomechanical engineer also opined that there was no evidence of any acute trauma that a fall from a height would have caused.

Aspromonte v. Judlau Contracting, Inc. et al., 162 A.D.3d 484, 78 N.Y.S.3d 334 (1st Dep’t 2018)