In a decision dated October 4, 2017, Justice Paul J. Baisley, Jr. granted our client, Manhattan Business Interiors, summary judgment dismissing the plaintiff’s complaint against it together with all cross-claims. The plaintiff, a Superintendent of Buildings and Grounds at CUNY Queens College, alleged that on October 31, 2011, he fell partially into a two-foot wide “scenery trench” located at the back of the stage of the Goldstein Theatre while attempting to dodge a pile of wood debris. At the time of the accident, the plaintiff claims that he was taking part in a walk-through of the theatre which was in the process of being renovated. The City University Construction Fund hired LiRo Program and Construction Management, P.C. to act as the construction manager in connection with the renovation of the Kupferberg Center for the Arts Complex at Queens College. LiRo in turn contracted with MBI to perform general contracting work at the project including renovations to the Goldstein Theatre. MBI hired more than one dozen subcontractors for the project. In dismissing plaintiff’s Labor Law §240(1) claim, the Court held that the plaintiff did not sustain injuries resulting from an elevation-related hazard. The Court also found that the plaintiff was not entitled to the protections of Labor Law §241(6) as he was neither employed by a contractor retained to perform a covered activity nor was he permitted or suffered to carry out such an activity in relation to the subject renovation project. Further, the activity he was engaged in at the time of the accident, namely his inspection of a water leak, was consistent with the type of routine maintenance he would be expected to carry out as a janitorial superintendent. Plaintiff’s Labor Law §200 and common law negligence causes of action were also dismissed because MBI neither created the hazardous condition nor had actual or constructive notice of it.
Mandart v. MBI Construction, Inc. et al., Index No. 26654/12 (Suffolk Co. Sup. Ct., Oct. 4, 2017)
In a decision dated September 15, 2017, Justice Thomas P. Aliotta granted our client, defendant CCA Civil Inc., summary judgment dismissing the plaintiff’s complaint against it as a matter of law. The plaintiff claimed that he sustained injuries on November 6, 2012, when he fell off his bicycle while riding on the sidewalk. The left handlebar of his bicycle allegedly struck an orange road sign that had become detached from a wooden frame and was situated on the ground and protruding three to four inches onto the sidewalk. At the time of the accident, a construction project was underway which involved the reconstruction of the Staten Island Expressway along the stretch of Narrows Road where plaintiff’s accident occurred. CCA had a contract with the State of New York Department of Transportation for the Staten Island Expressway project. The Court held that CCA established its prima facie entitlement to summary judgment as a matter of law by setting forth evidence that the plaintiff was not a party to its contract with the NYSDOT for the reconstruction of the Staten Island Expressway, and therefore owed plaintiff no duty of care. The Court held that assuming arguendo that the pleadings alleged facts which would establish the applicability of various exceptions to the no-duty rule espoused by the leading Court of Appeals decision in Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 773 N.E.2d 485, 746 N.Y.S.2d 120 (2002), the plaintiff’s motion papers failed to raise any triable issue of fact that would support an exception to Espinal. The Court found the relevant contract terms, diagrams and drawings clearly depicted that the area in question was not within the boundaries of the work performed by CCA. The Court also found there was no evidence CCA had actual or constructive notice of the alleged defect for a sufficient length of time prior to the accident. The Court further held that plaintiff’s conclusory assertion that CCA had constructive notice of the defective sign was legally insufficient, noting that the plaintiff admitted at his 50-h hearing that he himself did not see the subject sign before his accident. Finally, the Court held that based on plaintiff’s photographs, which he testified fairly and accurately represented the accident site, the orange road sign at issue was readily observable by a reasonable use of the plaintiff’s senses and the condition of the roadway was not inherently dangerous.
Cortes v. City of New York, et al. Index. No 100118/2014 (Richmond Co. Sup. Ct., Sept.15, 2017)
In a unanimous decision dated August 16, 2017, the New York State Appellate Division, Second Department affirmed the lower court’s dismissal of the plaintiff’s complaint including those causes of action for common law negligence and violations of Labor Law §§200, 240(1) and 241(6) as to our clients, Hill International, Inc., Lemley Hill International, Inc., Lemley International Inc., LIRO Engineers, Inc. and A Daniel Frankfurt Engineers & Architects/HDR Inc., A Joint Venture. The plaintiff sought damages for personal injuries allegedly sustained while working on a project involving the extension of the #7 New York City Subway Tunnel. The plaintiff alleged that he fell from a stack of blasting masts while he was in the process of descending same. In affirming the lower court’s decision, the Appellate Division held the defendants’ evidence that they were not agents of the MTA and neither instructed nor supervised plaintiff was sufficient to make a prima facie showing of the entitlement to judgment as a matter of law, dismissing plaintiff’s causes of action for common law negligence and violations of Labor Law §§200, 240(1) and 241(6).
Lamar v. Hill Int’l, Inc., 153 A.D.3d 685 (2d Dep’t 2017)
In a decision entered on August 9, 2017, Justice Lucy Billings granted the summary judgment motion of our clients, City of New York (“City”) and New York City Department of Transportation (“DOT”), 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 3rd 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), 241(6) and 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.
Mitchell v. The City of N.Y., Index No. 100256/11 (N.Y. Co. Sup. Ct., Aug. 9. 2017)
In a decision dated August 3, 2017, Justice Debra A. Silber granted the summary judgment motion of our clients, Tully Construction Co., Inc. and the City of New York, dismissing the plaintiff’s complaint and all cross-claims against them. The plaintiff sought damages for personal injuries sustained in an automobile accident that occurred shortly after midnight on August 24, 2012. After being involved in a minor two car accident, the plaintiff and another driver stopped their vehicles in the left westbound lane of the Belt Parkway and exited their vehicles. Another vehicle then struck the plaintiff’s stopped vehicle in the rear, propelling it into him. The accident occurred in the construction zone for Tully’s work, but work was not taking place at the time of the accident. In granting the motion of Tully and the City, Justice Silber found that “there is not a shred of evidence that the inactive construction site on the Belt Parkway was in any way a contributing factor to either of the accidents.”
Laurent v. Belony, et al., Index No. 3611/13 (Kings Co. Sup. Ct., Aug. 3, 2017)
The plaintiff, a 74-year-old passenger in a vehicle owned and operated by defendant Stephen Naklicki, sought damages for personal injuries sustained in an accident that occurred in the predawn hours of Monday, August 5, 2013, in a closed truck inspection area which was being utilized by our client, Kiska Construction Inc., as a “staging area” in connection with its rehabilitation of nine bridges project. The staging area was located along the eastbound Long Island Expressway approximately one-half mile west of Exit 66. Mr. Naklicki, who intended to exit at Exit 66, allegedly became confused by the absence of any “ramp closed” signs and drove directly into the staging area, crashing through a chain link fence and finally, crashing into stored concrete barriers that plaintiff argued, were partially on the paved road. Plaintiff alleged that Kiska was negligent in failing to provide adequate signage, warnings and traffic control devices and in otherwise failing to properly close an exit ramp/access road in accordance with the New York State Highway Law, NYSDOT Standard Specifications Section 619 (maintenance and protection of traffic) and the Manual for Uniform Traffic Control Devices. In December, 2016, plaintiff settled with Mr. Naklicki. Following a jury trial on liability before Hon. Janice A. Taylor, Kiska successfully obtained a defense verdict thereby dismissing the plaintiff’s case.
Frederick Stoehr v. Stephen Naklicki and Kiska Construction, Inc., Index No. 707071/14 (Queens Co. Sup. Ct., Jul. 24, 2017)
In a decision dated July 20, 2017, Justice Gerald E. Loehr granted the summary judgment motion of our clients, Skanska USA Civil Northeast Inc., Tully Construction Co. Inc. and Skanska/Tully JV, dismissing the plaintiff’s complaint and all cross-claims against them as a matter of law. Skanska and Tully were members of a joint venture called Skanska/Tully JV, which was a prime contractor. The plaintiff sought to recover for injuries he allegedly sustained when he fell from a ladder while performing work at the Croton Water Treatment Plant in Bronx, New York. He commenced a lawsuit against, among others, our clients seeking to recover damages pursuant to Labor Law §§200, 240(1) and 241(6) and for common law negligence. In dismissing the plaintiff’s complaint, the Court found that our clients submitted sufficient evidence in admissible form proving that the joint venture was a prime contractor which did not have authority to (and did not) supervise the plaintiff’s work in connection with this accident. Accordingly, the Court found that Skanska, Tully and Skanska/Tully could not be held liable for the plaintiff’s accident.
Maloney v. Skanska USA Civil Northeast Inc., et al., Index No. 030879/14 (Rockland Co. Sup. Ct., Jul. 20, 2017)
In a decision dated April 28, 2017, Justice Manuel J. Mendez granted our clients, defendants Bank of America Corp. and Structure Tone, Inc., summary judgment dismissing the plaintiff’s complaint sounding in common law negligence and violations of Labor Law §§200 and 241(6). The plaintiff, an employee of non-party Almar Plumbing and Heating Corporation, claimed that he sustained injuries on September 2, 2008, while working at the construction site located at 1111 Avenue of the Americas, New York, New York. The project at the premises, known as “One Bryant Park”, entailed the new construction of a commercial building with interior corporate offices, amenities and retail space. Plaintiff claimed he was injured when his foot slipped on an unsecured piece of masonite while exiting an elevator at the C-2 level of the building. The masonite that had allegedly caused plaintiff to fall had been placed over a poured concrete floor which had been covered by vinyl laminate flooring to protect it during the remainder of the construction process. By way of background, the plaintiff had previously commenced a lawsuit arising out of the same accident against our clients, defendants One Bryant Park, LLC, One Bryant Park Development Partners LLC, the Durst Manager LLC and Tishman Construction Corporation. Plaintiff then commenced the instant action against Bank of America Corp and Structure Tone Inc. While the plaintiff’s motion to consolidate the two actions was pending, the defendants who were sued in earlier action moved for summary judgment dismissing all claims against them. At that time, Justice York granted the motion for summary judgment prior to the consolidation and dismissed the entire complaint including those claims for common law negligence and violation of Labor Law §§ 200 and 241(6). This decision was affirmed by the Appellate Division, First Department. See Stier v. One Bryant Park LLC et al., 113 A.D.3d 551, 979 N.Y.S.2d 65 (1st Dep’t 2014). In regard to the motion for summary judgment in the instant action, Justice Mendez held that the defendants Bank of America Corp. and Structure Tone, Inc. established their entitlement to summary judgment on the common law negligence and Labor Law §200 claims because they had no prior notice of the masonite placed in front of the elevator door. The defendants established that Bank of America Corp. did not control the work site or supervise or control plaintiff’s work and did not have actual or constructive notice of the allegedly defective masonite. Similarly, the defendants established that Structure Tone, Inc. had no presence on the subject property, and therefore could not have supervised or controlled plaintiff’s work and could not have had notice of an alleged defective condition involving masonite. Regarding the Labor Law §241(6) cause of action, the Court held that defendants provided evidence that Industrial Code Rules 23-1.7(d), (e)(1) and (e)(2) were not applicable to the facts surrounding plaintiff’s accident. The Court noted that both Justice York and the First Department previously found there was no evidence plaintiff’s accident was the result of a failure to remove or cover a foreign substance, and masonite is not a slipping hazard contemplated by Rule 23-1.7(d). Additionally, Rule 23-1.7(e), which requires work areas to be kept free of tripping hazards, was held to be inapplicable because the plaintiff did not allege that he tripped on an accumulation of dirt or debris. Rather, the plaintiff testified that he slipped on an unsecured piece of masonite, which was not a tripping hazard. Justice Mendez held that plaintiff failed to raise an issue of fact as to the Industrial Code Rules.
Stier v. One Bryant Park LLC et. al., Index. No 103134/2009 (N.Y. Co. Sup. Ct., Apr. 28, 2017)
On March 30, 2017, the Court of Appeals reversed the Appellate Division, First Department’s decision which granted the plaintiff summary judgment on his Labor Law §240(1) cause of action. The plaintiff, an employee of subcontractor DCM Erectors, brought suit against our clients, the Port Authority of New York and New Jersey and Tishman Construction Corporation of New York, for injuries allegedly sustained when he slipped and fell while descending a wet temporary exterior metal staircase at the 1 World Trade Center construction site. The Port was the owner of the premises and Tishman was the general contractor. Both the plaintiff and defendant moved in the Supreme Court for summary judgment on the plaintiff’s Labor Law §240(1) claim. The plaintiff also moved for summary judgment on his Labor Law §241(6) premised on an alleged violation of Industrial Cede Rule 23-1.7(d). In support of his motion, the plaintiff submitted an expert affidavit from a professional engineer and licensed building inspector who opined that the stairs were not in compliance with good and accepted standards of construction site safety and practice or with the Occupational Safety and Health Administration provision which requires that slippery conditions on stairways be eliminated. The plaintiff’s expert also opined that the steps showed signs of wear and tear and were smaller, narrower and steeper than typical stairs. The plaintiff also submitted an affidavit from a coworker stating that “almost everyone was aware of the slippery nature of the stairs.” In opposition to the plaintiff’s motion and in support of their own motion, the defendants submitted affidavits from a construction safety expert who opined that the staircase was designed for both indoor and outdoor use and was designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather. The expert also noted that the steps had perforated holes to allow rain to pass through and raised metal nubs for traction. The expert also found the tread depth and width of the steps met good and acceptable construction industry standards and he disputed that the staircase was smaller, narrower or steeper than usual. The Supreme Court ultimately denied the motions for summary judgment on plaintiff’s Labor Law §240(1) claim, finding that there were issues of fact regarding whether the temporary staircase provided proper protection, but granted the plaintiff summary judgment on Labor Law §241(6) finding a violation of Industrial Cede Rule 23-1.7(d). On appeal, the First Department modified the lower court’s decision, granting plaintiff’s motion for summary judgment on his Labor Law §240(1) claim but reversing the granting of summary judgment on the plaintiff’s Labor Law §241(6) claim. It held that although there were conflicting expert opinions as to the adequacy and safety of the steps, it was “undisputed that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling.” With respect to the Labor Law §241(6) claim the First Department found that questions of fact existed as to whether or not the defendants had notice of the condition of the staircase. The defendants then moved and were granted leave to appeal to the Court of Appeals by the First Department. On appeal, the Court of Appeals reversed the First Department’s decision on Labor Law §240(1) holding that there were questions of fact regarding whether the staircase provided adequate protection. In reaching its decision, the Court of Appeals commented that to the extent the First Department’s decision can be “read to say that a statutory violation occurred merely because plaintiff fell down stairs, it does not provide an accurate statement of the law.” It further noted “the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law §240(1).” Significantly, the Court of Appeals also found that the competing expert opinions raised an issue of fact as to whether or not proper protection was provided. The Court stated, “[h]ere, by contrast, there are questions of fact as to whether the staircase provided adequate protection. As noted above, defendants’ expert opined that the staircase was designed to allow for outdoor use and to provide necessary traction in inclement weather. Moreover, defendants’ expert opined that additional anti-slip measures were not warranted. In addition, he disputed the assertions by plaintiff’s expert that the staircase was worn down or that it was unusually narrow or steep. In light of the above, plaintiff was not entitled to summary judgment on the issue of liability.” The Court of Appeals let the First Department’s decision stand regarding Labor Law §241(6) finding that the plaintiff’s failure to cross-appeal from the First Department’s decision rendered the issue unreviewable.
O’Brien v. The Port Auth. of N.Y. and N.J. et al., 29 N.Y.3d 27, 74 N.E.3d 307, 52 N.Y.S.3d 68 (2017)