Firm News

Court Dismisses Labor Law Complaint In Its Entirety As To Defendants Where Plaintiff Was Injured By A Sawzall While Lying On Ductwork Attached To The Ceiling

In a decision dated May 15, 2020, Justice Lucindo Suarez of Bronx County Supreme Court granted our clients, 1515 Broadway Owner LLC (“1515 Broadway”) and Viacom, Inc. (“Viacom”) summary judgment dismissing the plaintiff’s complaint in its entirety as a matter of law. The plaintiff, a laborer employed by non-party, J.T. Magen & Company, Inc. (“J.T. Magen”), alleged personal injuries sustained when, while lying on ductwork that was attached to the ceiling in order to remove fireproofing material while using a Sawzall, the Sawzall came into contact with an object hidden underneath the fireproofing causing it to kick back and injure the plaintiff. Defendant 1515 Broadway owned the building where the accident occurred and Viacom, a tenant in the building, contracted for J.T. Magen to perform the construction work. Recognizing that liability under Labor Law §240(1) requires proof that the plaintiff’s injury was caused by an elevation-related risk such as falling from a height or being struck by a falling object that was improperly hoisted or inadequately secured, the Court held that the plaintiff’s Labor Law §240(1) claim failed as a matter of law because his accident did not result from an elevation-related risk. The Court rejected the plaintiff’s argument that triable issues of fact existed as to whether the defendants failed to provide him with the proper scaffold to perform his work because he failed to show that his injuries were caused by a scaffold’s failure to protect him against an elevation-related risk. Additionally, the court granted 1515 Broadway’s and Viacom’s motion to dismiss the plaintiff’s Labor Law §241(6) claim that was predicted on Industrial Code Rules 23-5.13(a)-(d) and 23-5.18, both of which pertained to the safety of scaffolds. In dismissing the §241(6) cause of action, the Court held that the defendants established as a matter of law that the aforementioned Industrial Code Rules were inapplicable and therefore the plaintiff’s injuries were not proximately caused by a violation of them. The plaintiff did not oppose the defendants’ motion to dismiss his Labor Law §200 and common-law negligence claims.

Frank D’Erasmo v. 1515 Broadway Owner LLC and Viacom, Inc., Index No.: 22924/2016 (Bronx Co. Sup. Ct. May 15, 2020)

Court Dismisses Plaintiff’s Complaint in Its Entirety As to Airport Defendants in Action Involving Catering Rack that Allegedly Fell Onto Plaintiff

In a decision dated March 10, 2020, Justice Richard G. Latin of Queens County Supreme Court granted the defendants’ motion for summary judgment dismissing plaintiff’s complaint in its entirety as to our clients, Delta Airlines, Inc. (“Delta”), SCIS Air Security Corporation (“SCIS”) and LSG Sky Chefs North America Solutions, Inc. (“Sky Chefs NAS”). The plaintiff commenced the instant action to recover for injuries she allegedly sustained as a result of an improperly stacked catering rack which caused a food carrier/container to fall and strike her arm while working for LSG Sky Chefs, Inc. (“Sky Chefs”) at the John F. Kennedy International Airport, Building 139. At the outset of the Court’s decision, it found that the defendants met their prima facie burden in establishing the factual basis for summary judgment. The Court recounted the detailed information and evidence that was submitted with the motion, including all of the affidavits of each of the defendants, the testimony cited from the plaintiff’s depositions as well as the relevant provisions of the Catering Agreement between Sky Chefs and Delta. Based on the affidavits that were submitted on behalf of Delta and Sky Chefs, the Court determined that the racks from which the Delta container allegedly fell onto the plaintiff were not Delta property, but rather, they were owned by the plaintiff’s employer, Sky Chefs. Additionally, the Court acknowledged that such racks were returned to the Sky Chefs’ kitchen after they were used to transport the carriers to the aircraft and were then utilized in the catering of other airlines’ aircraft from Building 139. Furthermore, the Court acknowledged that Sky Chefs had painted the yellow “safety lines” on the walls of the kitchen and enforced the guidelines that the items should not be stacked above this line.

The Court also noted that the plaintiff’s opposition rested solely on the theory of negligent bailment which it rejected. While the plaintiff had argued that there was a triable issue of fact as to whether the defendants should be held liable on the grounds that the equipment they provided to Sky Chefs was not safe for its intended use and was loaned from Delta to Sky Chefs, the Court noted that such characterization assumed that Delta owned the racks and loaned them to Sky Chefs in the first instance. However, the Court ruled that such a claim of negligent bailment was properly refuted by the defendants in their submission of the supporting affidavits that Sky Chefs and not Delta owned the racks.

Finally, the Court noted that the common law in the State of New York does not impose a duty on one party to control the conduct of a third person to prevent them from causing injury to others and that liability for such negligent acts of third persons generally arises when the defendant has authority to control the actions of said third persons. The Court ruled that here, however, the defendants demonstrated that they did not own or exercise control over the racks in question nor did they control the activities of the plaintiff or her employer, Sky Chefs. As such, absent such a special relationship which had not been established by the plaintiff, the defendants did not breach their duty of reasonable care to the plaintiff. The Court also dismissed the plaintiff’s claims against Sky Chefs NAS and SCIS on these grounds as well and as the plaintiff had focused her opposition to the motion solely on Delta. In light of the above, the defendants’ motion for summary judgment was granted dismissing the plaintiff’s complaint in its entirety as a matter of law.

Betsy Silva Casas v. Delta Air Lines, Inc. et al., Index No. 708865/2016 (Queens Co. Sup. Ct., Mar. 10, 2020)

Court Denies Plaintiff Summary Judgment On His Labor Law §240(1) Claim In Case Involving a Falling Unsecured Piece of Sheetrock

In a decision dated January 29, 2020, Justice Barbara Jaffe of the New York County Supreme Court denied plaintiff’s moton for summary judgment as to our client, 60 Hudson Owner, LLC, on the plaintiff’s cause of action pursuant to Labor Law §240(1). The plaintiff, an employee of non-party, Northern Bay Contractors, Inc., was hired to perform work at 60 Hudson Street, owned and operated by the defendant. The plaintiff alleged that during the course of his work he was struck by a falling, unsecured piece of sheetrock and there were no adequate safety devices provided to prevent it from falling. The Court seized upon the fact that plaintiff was unable to adequately describe the size or weight of the subject sheetrock, and that the evidence he presented was insufficient to demonstrate that the subject sheetrock either plummeted from more than a minimal height or that it was sufficiently heavy to warrant the use of a safety device. Had the Court found either to be the case, Labor Law §240(1) would have been applicable, yet firmly based upon the affidavits the defendant presented, the Court did not. Furthermore, the Court found the defendant’s witness affidavits compellingly indicative of a question of fact between plaintiff’s version of events and the defendant’s version of events. In particular, one of the defense witnesses affirmed that the sheetrock weighed between one to three pounds, measured 18 by 12 inches, and questionably could not have generated the force that Labor Law §240(1) jurisprudence has required concerning the weight of falling objects. Finally, the Court found that there was the likelihood, once again based upon the defendant’s witness affidavit that the sheetrock was in the process of being installed, in which case it certainly could not have been secured because to secure it would have been “contrary to the objective of the work plan.” Based on the defendant’s fact witness affidavits which supplied details regarding the nature of the work taking place and the dimensions/weight of the sheetrock that fell, as well as the defense liability expert’s professional opinion as a construction site safety expert that the sheetrock was not required to be secured, the Court concluded that the defendant raised issues of fact requiring the denial of the plaintiff’s motion.

Victor Vega v. 60 Hudson Owner, LLC, Index No. 158179/2016 (N.Y. Co. Sup. Ct., Jan. 29, 2020)

Court Dismisses Action Against City of New York Because It Did Not Own or Control the Arterial Highway Where the Plaintiff’s Accident Occurred

In a decision dated February 7, 2020, the Hon. Thomas P. Aliotta granted our clients the City of New York, New York City Department of Transportation and New York City Department of Design and Construction (collectively referred to as the “City”) summary judgment dismissing the plaintiff’s complaint in its entirety as a matter of law. The plaintiff, an employee of non-party CCA Civil Inc., was a union truck driver at the Staten Island Expressway Reconstruction and Bus/HOV Lane Extension Project. He alleges personal injuries resulting from his employment when he slipped and fell on ice at the active worksite. In support of its motion for summary judgment, the City submitted the sworn affidavit of a Senior Clams Specialist with the City of New York Law Department who averred that the plaintiff worked at a job site operated by the New York State Department of Transportation. The City also attached a copy of the executed contract showing that CCA contracted with the NYSDOT to complete the project in question. The City’s affidavit also included records indicating that the City did not perform construction work in connection with the project nor did it supervise, direct or control the construction activities taking place at the worksite. In reaching its decision, the Court cited to the Court of Appeals’ decision in Nowlin v. City of N.Y., 81 N.Y.2d 81 (1993), in which it held that the New York State Highway Law transfers ownership of arterial routes running through cities to the State during the “construction or reconstruction” of these routes. Here, the plaintiff allegedly sustained injuries while working at an active worksite located on the Staten Island Expressway, which represents one of these “arterial routes”. In opposition to the motion, the plaintiff failed to provide evidence demonstrating the City controlled the worksite or engaged in the contracting process where the NYSDOT selected CCA as the general contractor for the project. In light of the foregoing, the Court granted the City’s motion for summary judgment and dismissed the plaintiff’s complaint in its entirety.

Michael Tartaglione v. City of N.Y. et al., Index No. 100187/2015 (Richmond Co. Sup. Ct., Feb. 7, 2020)

Court Dismisses Claims Against Co-General Contractor Which Lacked Control Over Accident Location and Grants Contractual Indemnification Claim Against the Plaintiff’s Employer

In a decision dated February 6, 2020, the Hon. Barbara Jaffe granted our client, The Pike Company, Inc., summary judgment dismissing the plaintiff’s causes of action for common law negligence and pursuant to Labor Law §§200 and 240(1) and as well as contractual indemnification against the plaintiff’s employer, United Iron. Judge Jaffe also granted the other defendants’ summary judgment motions and dismissed the complaint, including the plaintiff’s Labor Law §241(6) claim. The plaintiff steelworker was injured during the construction of two buildings on the Regeneron Pharmaceuticals complex in Mount Pleasant, New York. There were two general contractors on this project – Moriarty Contracting for the exterior work and Pike for the interior work. United Iron was a subcontractor to both Moriarty and Pike. The accident occurred at the beginning of the work day as the plaintiff was walking to United Iron’s trailer, which was located on a trailer park under Moriarty’s jurisdiction; the plaintiff intended to perform work for Pike that day. The plaintiff followed his foreman as they walked from the paved parking area and roadway down a “moderately”-sloped dirt path toward the trailer. The dirt path was worn down from use and the plaintiff testified that he was not aware of the other entrance to the trailer. Moriarty’s witness testified that there was an alternate entrance to the trailer which was on level ground, but there were times when this path was covered in water and mud, which the witness conceded was an unsafe condition. The plaintiff had slipped on this dirt path a few times before his accident, but he never complained to Pike about it. The trailer was located off of a main roadway on the project which Pike personnel used to get to their trailer park. During oral argument of the motion, the plaintiff withdrew his Labor Law §240(1) claim. With respect to the plaintiff’s Labor Law §200 and common-law negligence claims, the Court held that Pike established that it did not create or have actual or constructive notice of the conditions around the trailer and Pike did not have any control over this area. United Iron opposed Pike’s motion for contractual indemnity on the grounds that there were questions of fact as to Pike’s negligence. Inasmuch as Pike was not negligent, the Court granted Pike judgment on its contractual indemnity claim as against United Iron.

Joseph Ryan v. BMR-Landmark at Eastview LLC, et al., Index No. 150878/2015 (N.Y. Co. Sup. Ct., Feb. 6, 2020)

Contractor Entitled to Dismissal of Labor Law Claim Premised Upon Industrial Code Rule 23-1.7(d) as Cited Rule Held Inapplicable

In a decision dated January 13, 2020, the Hon. Carol Edmead granted our client Skanska USA Building Inc. summary judgment dismissing plaintiff’s Labor Law §241(6) claim premised upon Industrial Code Rule 23-1.7(d) [slipping hazards] as a matter of law. The plaintiff was injured during the construction project for the City University of New York (“CUNY”) located at 85 Nicholas Avenue in Manhattan. The project included construction of CUNY’s Advanced Science Research Center, and Skanska was the general contractor. Plaintiff was employed by non-party Tower Installation on the day of his accident, and was performing window installation on one of the newly erected buildings on the project. As he was walking to get a box of caulk from the doorway of a nearby building, he alleges that he slipped and fell on snow and ice.  The court found Skanska made a prima facie showing of entitlement to judgment submitting plaintiff’s own description of the area where the accident occurred as an open area between two buildings that were under construction. The plaintiff did not cite case law supporting his position there was a fact question if the area in question was a walkway for Rule 23-1.7(d) purposes. The court found plaintiff’s argument that the Rule’s language required all walkways be kept free from snow and ice that may cause “slippery footing” insufficient to raise a fact issue warranting denial of summary judgment where courts previously held that open areas, such as here, were not covered by Rule 23-1.7(d). In light of the foregoing, Skanska’s motion for partial summary judgment dismissing plaintiff’s §241(6) cause of action premised upon Industrial Code Rule 23-1.7(d) was granted as a matter of law.

Anthony Meringolo v. Turner Construction Co. et al., Index No. 158572/2014 (N.Y. Co. Sup. Ct., Jan. 13, 2020)

Court Dismisses Complaint As to Defendant Contractor In Action Involving Motorcycle Which Allegedly Struck a Flattened Orange Construction Barrel in Roadway

In a decision dated December 27, 2019, the Hon. Orlando Marrazzo, Jr. granted our client CCA Civil-Halmar International, LLC summary judgment, dismissing the plaintiff’s complaint in its entirety as a matter of law. The plaintiff commenced this action alleging personal injuries resulting from an accident that occurred while he was operating a motorcycle eastbound just past midnight on the Cross Bronx Expressway. At the time of the accident, the plaintiff was about 200 feet east of the 1B Major Deegan Expressway Exit and changing lanes when his motorcycle allegedly struck a flattened orange construction barrel in the roadway causing him to fall off his motorcycle. After a review of the facts in the light most favorable to the plaintiff, the Court determined that the “defendant implemented, deployed and maintained the work zone traffic control plant in accordance with the State of New York’s plans, approvals, and specifications as set forth in the contract between the defendant and New York State.” The Court further opined that the “plaintiff failed to demonstrate that the plans and specifications upon which the defendant relied and implemented were defective.” In light of the foregoing, the Court granted CCA summary judgment dismissing the plaintiff’s complaint as against it as a matter of law.

Elias Corniel v. CCA Civil-Halmar International, LLC, Index No. 100670/2015 (Richmond Co. Sup. Ct., Dec. 27, 2019)

Court Dismisses Complaint and Third-Party Contractual Indemnification Action Against Employer In Accident Involving Electrical Worker Whose Admitted Mistake Caused Arc Fault

In a decision dated January 7, 2020, the Hon. Thomas Feinman granted our client Haugland Energy Group, LLC, a third-party defendant, summary judgment dismissing the third-party complaint against it. The Court also granted the cross-motion of defendants/third-party plaintiffs, LIPA and PSEG, for dismissal of the plaintiff’s complaint, which asserted claims pursuant to Labor Law §§241(6) and 200 and for common-law negligence. The plaintiff, an experienced journeyman lineman employed by Haugland, was working on energized overhead electrical lines when he mistakenly crossed two energized phases of wire, producing an arc fault and a “fire ball.” Although the plaintiff acknowledged that it was his erroneous action in crossing phases that caused the arc fault, the plaintiff alleged that a defective condition in PSEG’s breakers and/or relays at the substation supplying power to the electrical pole caused the prolonged “fire ball” which resulted in his injuries. Haugland submitted the affidavit of a professional engineer who established that the cited Industrial Code provisions did not apply to the facts of the case and were not violated, and that Haugland was not independently at fault so as to trigger its contractual indemnity obligations to LIPA and PSEG. The Court held that the affidavit of Haugland’s expert engineer established that the plaintiff was the sole cause of the accident inasmuch as he was well trained, had extensive experience performing this type of work, appreciated the hazards of crossing phases, was provided with the appropriate safety equipment, the work was performed in accordance with Haugland’s health and safety plan and the other members of the plaintiff’s crew were properly trained and qualified to support the plaintiff and provided adequate supervision. The Court held that Haugland’s evidence established that the Industrial Code provisions (pertaining to warnings and protection against electrical contact/shock) did not apply to this accident since the plaintiff did not sustain electrical shock. The Court declined to consider the affidavit of the plaintiff’s expert witness, a lineman foreman, on the grounds that the plaintiff failed to prove that this witness had the requisite education, training or experience with respect to the circuit breaker and relay settings at issue to render a reliable opinion. The Court also noted that the plaintiff’s expert witness failed to rebut the opinion of Haugland’s expert engineer that Haugland acted in compliance with all applicable rules, statutes and regulations. On the basis of the foregoing, the Court granted Haugland’s motion to dismiss the third-party complaint and the cross-motion of LIPA and PSEG to dismiss the plaintiff’s complaint.

William Wittenberg v. Long Island Power Authority, et al., Index No. 611711/2017 (Nassau Co., Sup. Ct., Jan. 7, 2020)

In Memoriam: Richard Schmedake (1965-2019)- The partners and staff of Fabiani, Cohen & Hall are saddened by the death of their colleague who was with the firm since 2017. He was a skilled attorney who began his career as an assistant district attorney for many years before transitioning to civil litigation where he specialized in general liability defense, including construction law and insurance coverage. He was a wonderful person and we will truly miss him. Our hearts go out to his family at this difficult time.