In a decision entered February 14, 2019, the Appellate Division, First Department, unanimously affirmed the granting of summary judgment to our clients, the City of New York (“City”) and the New York City Department of Transportation (“DOT”), dismissing the plaintiff’s remaining causes of action pursuant to Labor Law §§240(1) and 241(6). In the lower court’s decision entered on August 9, 2017, Justice Lucy Billings granted the City and DOT summary judgment dismissing the plaintiff’s complaint in its entirety. Plaintiff sought damages for personal injuries allegedly sustained on May 17, 2010, when his left foot slipped off a rung then fell two rungs down before catching on the third rung down as he was descending a 20-foot extension ladder. After the close of discovery, the defendants moved for summary judgment seeking to dismiss the plaintiff’s complaint on the grounds that his fall from an allegedly “steep” ladder was not caused by the City’s and the DOT’s negligence or any violations of Labor Law §§200, 240(1) and 241(6). Plaintiff argued that the subject ladder was too steeply pitched, in violation of Labor Law §§240(1) and 241(6) premised upon Industrial Code Rule 1.21(b)(4) (which states that “a ladder shall be inclined a maximum of three inches for each foot of rise”). In granting the motion of the City and DOT, Justice Billings found that plaintiff’s argument “defie[d] the plain language of the regulation, physics, math, common sense” in that both his counsel and expert misread the regulatory language as being a minimum requirement, when it was a maximum requirement for the incline or pitch of the ladder. Justice Billings then confirmed that plaintiff’s expert failed to cite to any industry standards delineating the correct pitch of a ladder. The plaintiff then appealed to the First Department on the causes of action pursuant to Labor Law §§240(1) and 241(6) only. On appeal, the First Department held that there was “no viable Labor Law §240(1) claim where, as here, ‘plaintiff simply lost his footing while [descending] a properly secured, non-defective extension ladder that did not malfunction'” (citation omitted). As to the Labor Law §241(6) claim, the First Department determined that because “the ladder was placed in compliance with 12 NYCRR 23-1.21(b)(4)(i), dismissal of the Labor Law §241(6) claim was warranted”.
Joseph Mitchell v. The City of N.Y. et al., — N.Y.S.3d — (1st Dep’t 2019)
In a decision dated January 4, 2019, the Hon. Barbara Jaffe granted our client the defendant Port Authority of New York and New Jersey’s pre-answer motion to dismiss plaintiff’s causes of action pursuant to Labor Law §§240(1) and 241(6). The plaintiff, a Local 361 iron worker employed by Skanska/Walsh Joint Venture, claims he was injured while working at the Terminal B Project at LaGuardia Airport in Queens, New York, when a 2,000 lb. steel beam allegedly tipped over and fell and knocked him to the ground, pinning him underneath it onto a stack of beams. In reaching its decision to dismiss the Labor Law causes of action as against the Port, the Court noted that the Port is an interstate entity created by compact and is not subject to New York’s Labor Law. As a bi-state agency immune from regulation by a single state, New York’s Labor Law cannot apply to the Port absent indication that New Jersey has enacted a similar law concurrently with the enactment of New York’s law or that the law states expressly that it is intended to apply to the Port. Finally, the Court determined that the statutory waiver of sovereign immunity does not alter this result.
Robert Riegger v. Port Authority of New York and New Jersey et al., Index No. 151576/2018 (N.Y. Co. Sup. Ct., Jan. 4, 2019)
In a decision dated January 9, 2019, the Appellate Division, Second Department, affirmed the granting of summary judgment to our clients, The City of New York, New York City Department of Transportation, and E.C.C.O. III Enterprises, Inc., dismissing the plaintiff’s complaint in its entirety. The plaintiff sought damages for personal injuries allegedly sustained by the decedent, a bicyclist who was riding to work on Queens Boulevard, when the decedent was struck by a vehicle. The plaintiff alleged that the decedent was struck and killed by a motor vehicle exiting the westbound exit ramp of the Van Wyck Expressway in Kew Gardens, New York and that the defendants were negligent in the maintenance, operation, ownership, management and control of the roadway and exit ramp. In dismissing the plaintiff’s complaint, the lower Court found that the hypothesis of the plaintiff’s engineering expert that the vehicle which struck the decedent entered Queens Boulevard from the Van Wyck Expressway was based purely on speculation of a material fact, had no probative value and could not be used to defeat summary judgment. The Second Department agreed with the lower Court’s reasoning and affirmed the dismissal of the plaintiff’s action against the defendants.
George Martinez as Administrator of the Estate of Alexander G. Martinez, deceased v. The City of New York et al., 90 N.Y.S.3d 278 (2d Dep’t 2019)
In a decision dated January 4, 2019, the Hon. Lucy Billings denied the plaintiffs’ motion for a protective order and to quash the defendants’ (our clients’) subpoena duces tecum served upon IME WatchDog, Inc. for all records pertaining to the injured plaintiff’s examinations by the defendants’ physicians. The plaintiff, a local 28 union tin knocker/sheet metal worker employed by Tishman Construction Corporation of New York subcontractor Heritage Mechanical Services, alleges that he sustained personal injuries while engaged in ductwork and HVAC unit installations at a construction project. In the plaintiffs’ motion to quash, they argued that IME Watchdog’s records were protected from discovery by the attorney work product privilege (CPLR § 3101(c)) and as materials prepared for litigation (CPLR § 3101(d)(2)). In opposition, the defendants argued that the attorney work product privilege does not attach because IME WatchDog employs non-attorney representatives whose services are not necessary to facilitate attorney-client communications. The defendants also argued that these records are not immune from disclosure as material prepared in anticipation of litigation because the plaintiffs anticipated calling IME WatchDog representatives as trial witnesses and, as such, these records are relevant and subject to disclosure, pursuant to CPLR § 3101(d)(4). The defendants also argued that the plaintiffs failed to establish any special and unusual circumstances for transcribing the examinations, which would have required prior court approval, and that any such recordings are subject to disclosure, pursuant to CPLR § 3101(i). The Court held that, because the IME WatchDog representative who appeared at the examinations was not serving as the plaintiffs’ attorney, the records were not protected by the attorney work product privilege. The Court also held that even though the records constituted materials prepared for litigation, they were subject to disclosure because the defendants established that the recorded observations of the IME WatchDog representatives could not be obtained from any other source. Therefore, the Court held that non-party IME WatchDog was compelled to provide its records because they are relevant to the defense of the action.
Kevin Sheehan v. 30 Park Place Residential LLC, et al., Index No. 157153/2015 (N.Y. Co. Sup. Ct., Jan. 4, 2019)
In two decisions dated October 25, 2018, involving two related cases arising from 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)