Published Decisions

Mercedes T. Guillen, as Administrator of the Estate of Jose Elias Guillen, Deceased, and Mercedes T. Guillen, Individually v. 100 Church Fee Owner, LLC, et al., Index No. 162612/2014, 2017 NY Slip Op 31426(U) (New York County Sup. Ct., July 5, 2017)

In a decision dated July 5, 2017, Justice Manuel J. Mendez denied plaintiff’s motion for summary judgment on his Labor Law §§200, 240(1) and 241(6) claims, as well as his claim for common law negligence. The action arose out of a fatal construction accident in which the decedent, an employee of third-party defendant Star Wars Technology System Corp., was standing on the top step of a six-foot A-frame ladder when his co-worker fell off an adjacent ladder, causing the decedent to fall to the concrete ground below and die immediately on impact. In opposition to plaintiff’s motion, counsel for 100 Church Street, the owner of the building where the accident occurred, argued that plaintiff’s moving papers relied on hearsay consisting of an unauthenticated, redacted OSHA report, an autopsy report, and incident report. Judge Mendez agreed, concluding that plaintiff failed to meet his prima facie burden via admissible evidence. He further noted that there remained issues of fact as to whether the decedent was performing work in the scope of his employment with Star Wars, whether the ladder he was standing on was defective, and whether the decedent was the sole proximate cause of his injuries by choosing to stand on the top of a six-foot A-frame ladder. Judge Mendez also granted 100 Church’s cross-motion for summary judgment on its claim for common law indemnification against the decedent’s employer, and on its claim for failure to procure insurance as against another subcontractor.

Moskowitz v. Skanska USA Building Inc., et al., Index No. 159599/2015, 2017 WL 2951688 (New York County Sup. Ct., July 3, 2017)

In a decision dated July 3, 2017, Justice Robert Reed denied plaintiff’s motion for summary judgment on his claims for breach of contract, strict liability pursuant to Section 28-3309.4 of the Administrative Code of the City of New York, and attorneys’ and experts’ fees.  This action arises out of a construction project at 151 Mercer Street, New York, New York, where defendant Tory Burch seeks to build its flagship store.  The plaintiff, Moskowitz, is the alleged owner of the adjacent building located at 153 Mercer Street.  He claims that his building has been damaged due to defendants’ installation of piles at the 151 Mercer Site.  In the decision denying plaintiff’s motion, Justice Reed held that plaintiff had not met his prima facie burden by the submission of admissible evidence proving causation – i.e., that the alleged damage to his building was caused by defendants’ conduct.  In opposition, the defendants (including Skanska USA Building), submitted sufficient evidence, including witness affidavits and DOB records, to raise a triable issue of fact as to whether – and if so, to what extent – defendants’ construction activity caused any damage to plaintiff’s building.

Heavey v. A.J. Pegno Construction Corp., et al., Index No. 24910/2011 (Queens County Sup. Ct., Aug. 18, 2016)

In a decision dated August 18, 2016, Justice Marguerite A. Grays granted summary judgment dismissing the plaintiff’s complaint against the defendant, a joint venture consisting of Slattery Skanska, Inc., John P. Picone, Inc., James McCullagh Co., Inc., Picone/McCullagh Joint Venture and Perini Building Company, Inc. In the complaint, the plaintiff brought causes of action against the joint venture for common law negligence and pursuant to Labor Law §§200 and 241(6). The plaintiff, a New York City Department of Environmental Protection employee, sought damages for personal injuries allegedly sustained when he slipped and fell on ice while entering a building at the Newtown Creek Wastewater Treatment Plant in Brooklyn, New York. In granting the motion, the Court held that because the plaintiff was not employed for the purpose of performing construction or repairs, he was not a member of a class protected by Labor Law §§200 and 241(6). In dismissing the common law negligence claim, the Court held that the defendant joint venture owed no duty of care to the plaintiff because he was not a third-party beneficiary to the contract between the joint venture and the NYCDEP.

Rodriguez v. Metropolitan Transportation Authority, et al., Index No. 162629/2015 (New York Co. Sup. Ct., Aug. 10, 2016)

In a decision dated August 10, 2016, Justice Michael D. Stallman denied the motion of the petitioners seeking leave to file late notices of claim against the Metropolitan Transportation Authority, Metropolitan Transportation Authority Capital Construction Company, New York City Transit Authority, Long Island Railroad and the City of New York. The petitioner sought damages for personal injuries he allegedly sustained during construction on the East Side Access Project. Specifically, the petitioner claimed that he was standing on a mantrip that came to a complete stop at or about East 55th Street inside the East Side Access Tunnel when a locomotive rear-ended the mantrip, causing the petitioner’s body to be jolted from one side to the other. In denying the petitioners’ motion, the Court held that the petitioners did not set forth a reasonable excuse for failing to serve a timely notice of claim, nor did they demonstrate that the respondents acquired actual notice of the essential facts of their claim within 90 days of the accident. Moreover, the Court noted that, even if one of the respondents had acquired actual notice, such knowledge could not have been imputed to each of the other respondents, which are distinct and separate entities from one another.

Edwards-Buntin, Diane v. New York City Transit Authority, Index No. 0400274/2007 (New York Co. Sup. Ct., July 15, 2015)

In a decision dated July 15, 2015, Justice Michael D. Stallman granted summary judgment dismissing the plaintiff’s complaint against the City of New York. The plaintiff commenced a common law negligence action seeking to recover for personal injuries allegedly sustained while descending a stairway into a subway station. The defendants established that the plaintiff’s accident occurred during an ongoing rainstorm, and the plaintiff failed to raise any triable issues of fact as to the cause of her accident. As such, the court held that the “storm in progress” doctrine applied, thus suspending the City’s duty to maintain the stairway and barring the plaintiff’s claim.