Firm News

First Department Modifies Lower Court’s Consolidation Order and Refuses to Permit Joint Trial of Damages Claims of Three Personal Injury Actions Arising from the Same Gas Explosion Accident

In a decision dated May 16, 2019, the Appellate Division, First Department unanimously modified the Order of the Supreme Court, Bronx County (Hon. Laura G. Douglas) to the extent that it granted the plaintiffs’ motion to consolidate three personal-injury actions for a unified, joint trial on liability and damages. Our clients, the City of New York, New York City School Construction Authority, New York City Department of Administrative Services, Positive Electrical Associates, Inc. and the Board/Department of Education of the City of New York, consented to consolidation of the three actions for joint discovery and a joint trial of the three actions on the issue of liability but did not consent to a single, joint trial of all three actions on liability and damages. The actions relate to a gas explosion that occurred on August 20, 2015, during the construction of science laboratories at John F. Kennedy High School in the Bronx. The plaintiffs, who were employed by a plumbing and heating contractor, sustained personal injuries when there was a gas explosion while they were purging a gas line in a classroom laboratory. The plaintiffs assert causes of action for violations of Labor Law §§200 and 241(6) and for common-law negligence. The First Department held that, even though the three plaintiffs sustained similar types of injuries (i.e., burns), they each sustained different degrees of burns to different parts of the body. Therefore, a joint trial of the damage claims was not warranted because “individual issues would predominate” concerning the particular circumstances applicable to each plaintiff, including their individualized medical treatment and distinct medical history. The Court concluded that “[a]ny benefit gained by trying plaintiffs’ damages claims together would be outweighed by the potential prejudice to defendants.”

Charles Marullo v. The City of New York, et al., 172 A.D.3d 540, 101 N.Y.S.3d 47 (1st Dep’t 2019)

Fabiani Cohen & Hall Obtains Discontinuance of Plaintiff’s Complaint With Prejudice and With No Money Paid on Eve of Trial in Construction Accident Case After Presenting Plaintiff’s Counsel With Substantial “Conflicting” Proof About the Circumstances of the Accident

This matter arises out of CCA Civil/Halmar International, LLC’s contract with the State of New York Department of Transportation to reconstruct the Alexander Hamilton Bridge. The plaintiff, a Local 40 journeyman ironworker employed by CCA/Halmar, claimed he was injured on May 30, 2013, at the mid-span section of the bridge, when he stepped on a piece of chopped concrete debris on the Q-decking causing him to twist his right knee and sustain career-ending injuries including multiple surgeries ending in a total knee replacement. Plaintiff brought suit against the State of New York in the Court of Claims alleging violations of Labor Law §§200 and 241(6) as well as common law negligence. The case was scheduled for trial on April 30, 2019, before Judge David Sampson. Plaintiff’s settlement demand was $6 million.

Several days prior to trial, FCH presented plaintiff’s counsel with substantial ‘”conflicting” evidence of the circumstances of the alleged accident including that the plaintiff injured his knee while kneeling on a wood float for a week (C-2 Incident Report prepared after drafter spoke with plaintiff and C-3 Incident Report read and signed by plaintiff under oath) or while crawling from the shield to the wood float (doctor’s report) or while carrying a heavy hatch door (another doctor’s report) or because he tripped and fell over debris located on the Q deck covered with rubble, concrete chunks, debris and uneven Q deck pieces (plaintiff’s own sworn affidavit used in support of a motion for leave to file a late notice of intention to file a claim) or because he stepped on a small piece of concrete on an otherwise clean Q deck and twisted his knee but did not slip or trip and fall (plaintiff’s own sworn deposition testimony).

After presenting all of the “conflicting” evidence to plaintiff’s counsel, they agreed to discontinue the action in its entirety with prejudice. On April 29, 2019, a fully executed stipulation of discontinuance with prejudice was filed with the Court of Claims thereby bringing the action to conclusion without any money having been paid.

James Barry v. The State of New York, Index No. 124139 (N.Y. Ct. Claims)

First Department Affirms Dismissal of Plaintiff’s Complaint As Against City Defendants in Construction Accident Case

In a decision dated May 7, 2019, the Appellate Division, First Department unanimously affirmed the decision of the Supreme Court, New York County (Hon. Gerald Lebovits) which 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. The First Department held that Labor Law §240(1) did not apply to the circumstances of this accident “because the pipe saddle that detached from an overhead ceiling pipe assembly and struck plaintiff was not an object that required securing for the purposes of the undertaking; rather it was a permanent part of the structure.” Regarding the plaintiff’s Labor Law §241(6) claim, the First Department held that neither of the pleaded violations of the Industrial Code applied. Rule 23-1.7(a)(1) was held to be inapplicable “because plaintiff was not injured by debris that may have been falling from a ceiling demolition, but instead, from a fixture of the building which dislodged.” Rule 23-3.2(b) was also held to be “inapplicable because it pertains to protecting the stability of adjacent structures, not the stability of the building or structure allegedly being demolished.” Regarding the plaintiff’s causes of action for common law negligence and violation of Labor Law §200, the First Department held that these claims were properly dismissed because “[d]efendants made a prima facie showing of lack of notice of any problem with pipe saddles through the testimony of the construction manager’s representative who regularly walked the site and saw no evidence of the alleged condition, and the evidence that there were no complaints or prior similar incidents at the property.” The Court also determined that there was no constructive notice to the defendants “because the defective pipe saddle was latent, such that the construction manager’s representative’s inspections would not have alerted it to the potential hazard of the object becoming dislodged and falling.”

Michael Djuric v. City of New York et al., 172 A.D.3d 456, 100 N.Y.S.3d 17 (1st Dep’t 2019)

Court Dismisses Construction Accident Case In Its Entirety Including Those Causes of Action for Common Law Negligence and Violations of Labor Law §§200, 240(1) & 241(6)

In a decision dated February 28, 2019, the Hon. Kathryn E. Freed granted our clients Metropolitan Transportation Authority, New York City Transit Authority, MTA Capital Construction Company, Hudson Yards Development Corporation and the City of New York summary judgment dismissing plaintiff’s complaint in its entirety including those causes of action for common law negligence and violations of Labor Law §§200, 240(1) and 241(6). The plaintiff, a 33-year-old ironworker injured when the dumpster he was attempting to roll out of the way tipped over, allegedly causing permanent and disabling injuries. In dismissing the common law negligence and Labor Law §200 claims, the Court determined that none of the defendants created a dangerous condition, that they had notice of a dangerous condition at the premises or that they actually exercised supervisory control over the plaintiff’s work. The §240(1) claim was dismissed because at the time of the accident, the plaintiff was at the same elevation as the dumpster he was trying to move. Second, there was no evidence that the dumpster tipped over because of the absence or inadequacy of a safety device of the kind enumerated in the statute. Instead, the plaintiff’s allegations and testimony establish that the accident occurred due to the weight of the dumpster while he was pushing it across the plywood on the platform and when another worker began pushing the dumpster against him. Regarding the §241(6) cause of action, the Court held that the Industrial Rules cited by plaintiff were either not sufficiently specific to support a violation of §241(6), not factually relevant to the facts of the case or were not violated.

Joseph Sancino v. Metropolitan Transportation Auth. et al., Index No. 159913/2013 (N.Y. Co. Sup. Ct., Feb. 28, 2019)

Appellate Division, First Department Affirms Dismissal of Plaintiff’s Claims Pursuant to Labor Law §§240(1) and 241(6) in Construction Accident Case Involving Fall From Ladder

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., 92 N.Y.S.3d 652 (1st Dep’t 2019)