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Firm News

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., — N.Y.S.3d — (1st Dep’t 2018)


Court Dismisses Plaintiff’s Complaint As Against City Defendants in Construction Accident Case

In a decision dated May 4, 2018, the Hon. Gerald Lebovits granted our clients, the City of New York and the New York City Department of Environmental Protection, summary judgment dismissing all of the plaintiff’s claims as against the City and the DEP and denying the plaintiff’s motion for summary judgment on his causes of action pursuant to Labor Law §§240(1) and 241(6). The plaintiff, a Local 638 steamfitter employed by Skanska Mechanical and Structural, Inc. was allegedly struck by an inadequately secured roller hanger pipe saddle in the neck, which fell from above.  The incident allegedly occurred on October 2, 2011, while the plaintiff was working at the North River Sewage Treatment Plant located in Manhattan. Judge Lebovits determined that Labor Law §240(1) did not apply to the circumstances of this accident because the pipe saddle was part of the building’s permanent structure.  The Court accepted our argument that the pipe saddle is not the type of safety device which is intended to protect workers from a gravity-related hazard, so the failure of the pipe saddle did not implicate the protections of the statute.  In denying the plaintiff’s summary judgment motion, the Court accepted our argument that the failure of the tack welding (which caused the pipe saddle to fall) did not implicate the statute for the same reason. Regarding the plaintiff’s Labor Law §241(6) claim, the plaintiff only opposed the dismissal of two Industrial Code Rules.  The Court held that Rule 23-1.7(a)(1) (“Every place where persons are required to work or pass that is normally exposed to falling material or objects shall be provided with suitable overhead protection…”) did not apply to the accident because, although there was falling debris from the demolition work, the plaintiff was not struck by this debris but by the pipe saddle that was not adequately tack welded, i.e., the pipe saddles were not the type of falling objects that persons were normally exposed to and for which protection was required.  The Court held that Rule 23-3.2(b), which applies to the protection of adjacent structures during demolition, did not apply because the plaintiff was injured by the pipe saddle, not an adjacent structure. Finally, the Court dismissed the plaintiff’s causes of action for common law negligence and violation of Labor Law §200 because there was no evidence that the defendants had notice of the defective condition and the Court accepted our argument that insufficient tack welding constituted a latent defect which did not give rise to liability.  The Court also noted that none of the defendants would be liable under the means and methods analysis because the defendants were not in charge of fall protection at the project.

Djuric v. City of New York et al., Index No. 151057/12 (N.Y. Co. Sup. Ct., May 4, 2018)


Court Dismisses Third-Party Action Against Contractor-Employer

In a decision dated February 27, 2018, Justice Darrell L. Gavrin of the Queens County Supreme Court granted our clients, third-party defendants Skanska USA Civil Northeast, Inc., E.C.C.O. III Enterprises, Inc., J.F. White Contracting Company, and those companies collectively doing business as SEW Construction, summary judgment dismissing the plaintiff’s complaint against them as a matter of law.  The plaintiff claimed that he sustained injuries while employed by Skanska, one of the members of SEW, on a construction site owned by the New York City Department of Environmental Protection.  The plaintiff attempted to step over a three-foot high concrete form he and his coworkers had created and twisted his ankle.  The Court held SEW established that the plaintiff’s accident did not arise from the kind of elevation-related hazard covered by Labor Law §240, but rather arose from an ordinary danger of a construction site which further had no causal nexus stemming from a lack of prescribed safety devices, as required under §240.  The Court similarly dismissed plaintiff’s claim under Labor Law §§200 and 241.  The Court held the injuries claimed by plaintiff did not rise to the level of “grave injury” as prescribed by §241 and that under Workers Compensation Law §11, third-party common-law indemnification or contribution claims against employers are prohibited unless the employee has sustained a “grave injury”, or the claim is based upon a written contract provision.  As there was no grave injury, and no contract containing such a provision was provided, the Court held that SEW had demonstrated its prima facie entitlement to judgment as a matter of law dismissing the common-law indemnity, contractual indemnity and contribution causes of action asserted against it.

Turner v. Arcadis U.S. Inc., et al. Index No. 702115/2012 (Queens Co. Sup. Ct., Feb. 27, 2018)


Appellate Division Bars Plaintiff from Amending Complaint to Assert Claim for Punitive Damages Against Contractor

In a decision dated December 14, 2017, the Appellate Division, First Department unanimously reversed a Supreme Court, Bronx County order that granted the plaintiff’s motion to amend his complaint to include punitive damages against our client, Grace Industries, LLC. The plaintiff was involved in a motor vehicle accident on a highway that was in the process of being resurfaced by our client. After some discovery, the lower court allowed the plaintiff to amend his complaint to include a claim for punitive damages as against Grace. The basis for the plaintiff’s claim for punitive damages, among other things, was Grace’s off-road storage of a paver and its failure to fill in a trench on the side of the road. In reversing the lower court’s decision, the First Department determined that the conduct put forth by the plaintiff, if proven, was insufficient for the imposition of punitive damages, because it could not be viewed as a conscious and deliberate disregard of the rights of others. Accordingly, leave to amend the plaintiff’s complaint was denied.
Britz v. Grace Industries, LLC, et al., 156 A.D.3d 533, 65 N.Y.S.3d 453 (1st Dep’t 2017)