News

Partner Joseph Orlando wins summary judgment dismissal of a plaintiff’s Complaint in a construction accident case venued in Bronx County Supreme Court.  In Padilla v. Touro College, the 26 year old plaintiff was a security system installer as part of the renovation of Touro College located in Brooklyn, NY.  He claimed that a stack of 5 – 8 sheets of sheetrock, 4 ft. x 8 ft in size, leaning up against a hallway wall with their 8-foot length against the floor fell over onto him crushing his right arm when he went to move the stack in order to get behind it to perform his work. Plaintiff asserted claims of negligence and violations of Labor Law §§200, 240 and 241(6) against defendant Touro College, the owner of the premises. Judge Adrian Armstrong granted Mr. Orlando’s motion for summary judgment dismissal of plaintiff’s Complaint against Touro College.  The judge dismissed the Labor 240 claim based on the lack of a height differential between the plaintiff and the stack of sheetrock as the stack was only 4 feet in height.  The judge dismissed the Labor Law 241(6) claim as plaintiff’s cited Industrial Code sections were determined to be either inapplicable or insufficient to sustain a 241(6) claim.  As for the negligence and the Labor Law 200 claims, the judge concluded that the stack of sheetrock was not a ‘dangerous condition’ as it did not block the hallway and did not pose a danger until the plaintiff attempted to move it.  The judge also held that the accident arose from the ‘manner and method’ of the work and, since Touro College did not direct, control or supervise the plaintiff’s work activities, the judge dismissed the negligence and Labor Law 200 claims against Touro College.

This New York County-venued Labor Law action stems from a back injury sustained by a structural steel installer while working on a job in a large electrical room at LaGuardia Airport’s Terminal C in 2015.  We represented the general contractor, V.R.H. Construction Corp., and the terminal’s lessee, Delta Airlines.  Plaintiff worked for non-party Inter-Metal Fabricators building a new, lower ceiling in the electrical room and then installing additional steel beams in the confined and obstructed space in between the new, lower ceiling and the original ceiling to provide additional support to the original ceiling.  To do this, Plaintiff and his foreman had to lift the beams into the space by hand and maneuver them into place by hand around obstructions as well.  It was while he was doing the latter that he allegedly injured his back.

Plaintiff named Delta Airlines, the terminal building’s lessee, and V.R.H. Construction Corp., the project’s general contractor, as defendants, and sued both under Labor Law sections 240(1), 241(6), and 200.  He also made a general negligence claim.  Absent from the facts, however, was any claim that Plaintiff himself fell from a height or that anything fell on Plaintiff.  Rather, his claim centered on the obstructions in the workspace that prevented him from being able to use a hoisting device.

We moved for summary judgment on all of Plaintiff’s claims at the close of discovery.  As to Plaintiff’s Labor Law Section 240(1) claims, we argued that a Plaintiff who sustains an injury merely because he lifted a heavy object cannot sustain a claim under that Section, based on case law from other Appellate Departments.  There is no case law on that issue from the First Department, although certain trial level courts within the First Department have followed the other Appellate Departments on that point.  In opposition, Plaintiff withdrew his Labor Law Section 200 and 241(6) claims, as well as his general negligence claim, to focus on his Section 240(1) claim.  In an attempt to sustain his Labor Law Section 240(1) claim Plaintiff argued, in a novel approach not supported by any New York case law, that Defendants should have reconfigured the work site to allow for the use of a hoisting device.

Following oral argument on October 1, 2020, Justice Shlomo Hagler of the Supreme Court, New York County, granted our Summary Judgment Motion, dismissing Plaintiff’s novel argument as unsustainable under New York law and finding that sustaining an injury merely by lifting a heavy weight, as Plaintiff alleged, is insufficient to sustain a Labor Law Section 240(1) claim, thereby granting Defendants’ motion and dismissing Plaintiffs’ claim in full.

This Rensselaer County venued personal injury action stems from a stair collapse incident that occurred at the residential home of co-defendant, David DePaulo. We represented Bella Home Builders, Mr. DePaulo’s construction company. Plaintiff was at the subject premises at the request of defendant DePaulo to repair a leak in his condensation pump in the air conditioner unit in the basement. As he stepped onto the staircase, the entire staircase collapsed.  The plaintiff suffered a compound fracture of the ankle with multiple surgeries.  The staircase had been installed several years earlier during the construction of the home.  Defendant Bella was the general contractor for the construction of the home.  DePaulo was the titled owner and was having the home built as his personal residence.  DePaulo testified that he personally performed many tasks during construction himself in his individual capacity in order to save money by not going through Bella.  One of those tasks was the installation of the subject staircase.

Plaintiff named Mr. DePaulo individually and Bella as defendants. He claimed that DePaulo and Bella were negligent in the installation and maintenance  of the stairs and for failing to properly inspect the subject stairs.  Plaintiff also claimed that DePaulo was wearing both his homeowner’s hat and his Bella hat at the time of the installation of the stairs and therefore, Bella is liable for DePaulo’s actions under respondeat superior.  We moved for summary judgment at the close of discovery arguing that Bella cannot be held liable given the sworn, uncontradicted testimony of defendant DePaulo that he installed the subject staircase on his own, in his capacity as the homeowner of the subject premises. Judge Patrick McGrath issued a decision on August 18, 2020 granting our Summary Judgment Motion agreeing that Bella did not have any involvement in the installation or maintenance of the stairs, that Bella could not be held responsible for the independent acts of its principal performed in his capacity as the homeowner and that Bella did not have actual or constructive notice of any defect in the staircase.

New associate Taylor J. Hills prevailed in the First Department on a coverage issue involving the application of defendant’s automobile insurance policy.  In Peter Pan Bus Lines v. The Hanover Insurance Co., the underlying plaintiff arrived at her destination on a Peter Pan bus and either tripped over a suitcase while approaching her own suitcase or tripped on the curb while looking for her suitcase.  Defendant Hanover issued an auto policy to our client, Peter Pan.  The lower court denied our motion for summary judgment seeking a declaration that Hanover was obligated to defend and indemnify Peter Pan on a primary, non-contributory basis in the underlying action.  The Appellate Division unanimously reversed holding that the underlying plaintiff’s accident resulted from Peter Pan’s use of the bus, a covered auto under defendant’s policy, regardless of whether she tripped over luggage or tripped on the curb looking for her luggage.

 

Plaintiff commenced an action against Target Corporation and All Jersey Janitorial Services, Inc. to recover damages for injuries she sustained after she slipped and fell in a Target store.  Plaintiff alleged that she was caused to slip and fall as a result of the defendants negligence in failing to maintain the premises in a safe condition by allowing an excessive amount of wax to remain on the floor creating a slipping hazard.  Defendants moved for summary judgment arguing that there was no breach of duty to Plaintiff and that defendants were not the cause of Plaintiff’s accident.  The Supreme Court agreed finding that Plaintiff’s assertion that the floor was very shiny and highly polished was insufficient to demonstrate that it constituted a dangerous condition; and that, absent proof that the defendants were negligent in applying wax or polish, liability could not be imposed.

In Nazario v. Knight Electric, on appeal to the New York Court of Appeals, partner Amy Fenno won reversal of Labor Law § 240 (1) liability when the Court decided the Appellate Division First Department had erroneously granted summary judgment to Plaintiff under Labor Law § 240 (1). The Court held there was a triable issue of fact as to whether the A-frame ladder on which Nazario was standing failed to provide adequate protection. Nazario had been performing electrical work from the A-frame ladder and fell after being electrocuted. The Court held there was a factual issue as to whether the ladder failed to provide proper protection under Labor Law § 240 (1), and whether additional safety devices were required. Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287 (2003); Barreto v Metropolitan Transp. Auth., 25 N.Y.3d 426 [2015], reargument denied 25 N.Y.3d 1211 (2015).

In Frishman v. 1211 McDonald, LLC, et al. (Kings County, Index No. 28068/11), Judge Richard Velasquez ultimately granted summary judgment in favor of our client. Plaintiff claims she tripped and fell as a result of a cracked sidewalk in front of our client’s store and sued the building owner and our client.

We previously moved for summary judgment on the grounds that our client, the ground floor commercial tenant, could not be held liable because:

(1) The "sidewalk law,"Administrative Code § 7-210, was inapplicable since our client was the tenant, not the owner.

(2) There was no common law cause of action since our client did not create the condition; negligently repair the sidewalk; or derive a special use from the sidewalk.

(3) The lease provision making our client responsible for sidewalk repairs did not create a duty to the plaintiff, as per Espinal v. Melville Snow Contrs.

(4) The leasehold contractual indemnity provision was unenforceable as it violated G.O.L. § 5-321's prohibition against a tenant indemnifying a landlord for the landlord’s negligence and this case did not fall under the Great Northern exception to G.O.L. § 5-321 since the parties to the lease were not sophisticated individuals who, through an arms-length transaction, agreed to provide contractual indemnity and allocated the risk through the use of insurance.

(5) Our client did not breach its duty to procure insurance in favor of the landlord.

The court previously denied the motion, finding that there was an "issue of fact whether the tenant’s lease required maintenance of sidewalk." Therefore, we moved to reargue and explained that the plain wording of the lease states that the tenant was obligated to "take good care [of the premises and sidewalk and] make all non-structural repairs [emphasis added] thereto as and when needed to preserve them in good working order and condition..." Thus, the tenant’s duties as to the sidewalk were limited to routine cleaning and not the physical repair of the sidewalk flags, as supported by the relevant case law. After hearing argument, Justice Velasquez reversed the previous decision and issued an order granting summary judgment and dismissal of all claims against our client.

In Rubino v. 330 Madison Company, LLC et al. (New York County Index No. 110134/2011), Judge Cynthia S. Kern granted summary judgment in favor of our client, Michael Mazzeo Electric Corp. (“Mazzeo”), an electrician shop that installed wiring as part of a major renovation of a Manhattan building. Plaintiff alleged first degree burns to his head and right arm; a traumatic brain injury, with resultant cognitive deficits and emotional and psychological trauma; a herniated cervical disc, requiring a one-level discectomy and fusion; and inability to return to work, as a result of suffering an electric shock from a live wire hanging from a demolished ceiling. 

Mazzeo contracted with general contractor, Tishman Construction Corporation, to run electrical wires throughout the building to power future window washing equipment on various roof setbacks. Mazzeo performed this work nearly two years before plaintiff’s accident took place. It was alleged that Mazzeo left a particular wire unprotected and concealed within the drop ceiling of the 18th floor of the building. This wire was connected to an electrical panel on the 16th floor of the building. Several weeks before plaintiff’s accident, Waldorf Demolition (“Waldorf’s), demolished the entire 18th floor, exposing the wire. The record established that despite the owner, managing agent, and general contractor having knowledge that this particular wire was powered by a panel on a different floor, they never informed their electrical shut off contractor to de-energize the 16th floor panel prior to the demolition. Plaintiff later came into contact with the wire while putting on a safety harness. 

Although it was undisputed that Mazzeo installed the subject wire that shocked the plaintiff, our firm prevailed on summary judgment dismissal of plaintiff’s negligence, and Labor Law Sections 200, 240(1) and 241(6) claims; the owner’s and general contractor’s third-party claims over for contractual indemnification and contribution; and Waldorf’s cross claims for negligence. We established by expert affidavit and deposition testimony that Mazzeo had, in fact, safed off the subject wire, and that the subsequent demolition of the 18th floor destroyed whatever protection was placed on the end of the wire. Although the parties attempted to argue that Mazzeo failed to safe off the wire at all, or at the very least, failed to adequately do so, Mazzeo countered that there was no evidence presented establishing these facts. The claims against Mazzeo were based purely on speculation and conjecture.   

Judge Kern agreed and granted Mazzeo’s motion. Plaintiff and his wife, being represented by Sacks & Sacks L.L.P., had previously made a $10,000,000 settlement demand.

 

In Watts-Gilead v. Hercules Chemical Co., et al. (Bronx County Index No. 350663/08), Judge Julia Rodriguez granted summary judgment in June 2016 in favor of our client Hercules Chemical Co., a manufacturer of a sulfuric drain opener named Clobber. The infant Plaintiff allegedly sustained severe chemical burns when the chemical product came into contact with her skin. It was alleged that the drain opener came into the possession of the infant plaintiff’s mother through the landlord of her building. The infant plaintiff’s mother left the bottle of Clobber on a shelf in her bathroom. Within moments of doing so, the infant plaintiff somehow spilled the contents of the bottle onto her face and upper body suffering chemical burns.

Hercules had a distribution agreement with co-defendant distributor Oatey Supply Chain Services, Inc. Oatey, in turn, had an exclusive distribution agreement with co-defendant distributor Durst Corporation. Durst sold the product to Canje Discount (a local Bronx hardware and variety store). Plaintiffs’ landlord, co-defendant Michael Smith, purchased the Clobber from Canje Discount.

As part of its safety policy, Hercules included a Seller’s Notice within all shipments of Clobber. It also included clear and conspicuous warnings on each bottle of Clobber and even went as far as to require distributor Durst to sign an agreement acknowledging that it understood the dangerous nature of Clobber and that Clobber’s intended users were solely "professionals".

The only party that asserted a claim against Hercules was Durst. Judge Rodriguez concluded that summary judgment was warranted in favor of Hercules as there was no allegation that the Clobber was inadequately or negligently designed, manufactured, packaged or labeled, and Durst’s own judicial admissions as well as Durst’s own expert supported the conclusion that the Clobber was not defective and that its distribution and sale was proper and exceeded industry standards.