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Noteworthy Decisions and Recent Results

Bennett v. Alan H. Kirk, Inc.et al, 2016 NY Slip Op. 05904 (Court of Appeals): Plaintiff suffered a disabling traumatic brain injury from a fall while erecting a scaffold at a construction site and sued our client for $15 million, alleging it was the general contractor and strictly liable under Labor Law §240 and liable under sections 200 and 241(6) as well. The evidence established that our client was at most a construction manager with no authority over the work.  The Appellate Division Second Department affirmed the order granting our motion to dismiss all claims against our client, holding that it did not have supervisory control over the plaintiff’s work which would subject it to general contractor liability. Plaintiff appealed to the New York Court of Appeals, which unanimously affirmed the dismissal of all claims against our client.

Morris v. Home Depot USA, Inc. v. J&J Building Maint., Inc., NY Slip Op 05717 (2d Dept. 2017): Plaintiff claimed permanent disabling injuries from a slip and fall on snow & ice in the parking lot of a Home Depot store under construction and not yet open to the public. Home Depot impleaded our client, the snow plowing contractor, claiming that it was obligated to defend & indemnify it and to procure insurance for it under a contract. We successfully proved that the contract related to other stores, not to the accident location, that the services provided by our client were pursuant to a verbal agreement with no indemnity or insurance obligations and obtained a dismissal of Home Depot’s third party action. The Appellate Division Second Department unanimously affirmed.

Banegas v. Farr, 2014 Slip Op 07967 (2d Dept. 2014): Plaintiff was hired by the defendant homeowners to clean infested insulation out of the roof of their single family home, which was undergoing renovations. He fell from the roof sustaining injuries and was airlifted to the hospital. Plaintiff sued, claiming violations of Labor Law §§240(1) and 241(6). The Appellate Division affirmed the lower court’s dismissal of the action, holding that the defendants were entitled to the “homeowner” defense under the Labor Law because they did not supervise the methods or manner of the plaintiff’s work.

Perruzza v. L&M Creations of New York, 2014 Slip Op 1305 (2d Dept. 2014):
Plaintiff was renovating a tenant’s store in a commercial building. He alleged that just after midnight he fell down an unlighted exterior stairway and claimed extensive injuries. The lights were on a timer and turned off 10:00 pm. The court held that the lighting was reasonable. Plaintiff’s attempt to assert allegations not contained in his pleadings was rejected – the prima facie burden of a defendant moving for summary judgment is governed by the allegations in the plaintiff’s pleadings. Case dismissed.

Caiazzo v. Mark Joseph Contracting, Inc, App. Div. 2d Dept. (07/16/14): Plaintiff claimed permanent injuries when he allegedly fell at a construction site from a wood spool placed on its side and used as a step to enter a doorway to the premises. Even if defendant contractor built the doorway, it had no duty to install exterior stairs as it was not hired to do so. Defendant contractor had no authority over plaintiff’s work. Case dismissed as to our client.

Crosthwaite v. Maura Bros., Inc., 62 A.D.3d 823 (2d Dept. 2009): Snow removal contractor not responsible for “black ice” condition in parking lot. Plaintiff cannot speculate that alleged icy condition resulted from incomplete snow removal. Case dismissed.

Rau v. Bagels N Brunch, Inc., 57 A.D.3d 866 (2d Dept. 2008): Plaintiff injured from fall in ceiling rafters could not recover from property owner under the New York State Labor Law as his accident was not the result of a gravity related risk within the scope of the statute and he failed to prove a violation of safety regulations. Case dismissed.

Donohue v L. DeLea & Sons, Inc., 56 A.D.3d 602 (2d Dept. 2008): Plaintiff struck in head in the course of her employment while operating an allegedly defective hoist on a truck leased to her employer by a related entity could not recover against the defendants. Her exclusive remedy was her claim for workers compensation benefits. Case dismissed.

DeVito v. Harrison House Associates, 41 A.D.3d 420 (2d Dept. 2007): Plaintiff who slipped and fell on ice cannot speculate that it was old ice which the defendants were aware of prior to her accident. Case dismissed.

Worker operating Bobcat sustained traumatic amputation of index finger. Attempts to surgically reattach the finger failed and it had to be amputated again. Plaintiff’s claims against the defendant contractor alleging negligence and Labor Law violations were dismissed. Strandberg v. Goldberg & Rodler, Inc., Supreme Court, Suffolk County (2013).

Worker who fell from second floor of home under construction sustaining multiple fractures failed to establish his allegations of liability against the property owner of negligence and Labor Law violations. Case dismissed. Rice v. Filipkowski, Supreme Court, Suffolk County (2012).

Plaintiffs, who were passengers in vehicle operated by an impaired driver, could not recover against host driver where evidence established that driver’s impairment was not a proximate cause of the accident and affidavit of plaintiff’s expert was based on speculation. Miller v. Murphy, Supreme Court, Suffolk County (2012).

Plaintiff who suffered disabling traumatic injuries after his vehicle was struck by a falling tree could not recover against tree company hired to trim trees along roadway where he failed to prove that tree company was at fault and caused accident. Sullivan v. Northshore Tree, Supreme Court, Nassau County (2009).

Mazzara & Small represents clients throughout Nassau and Suffolk counties in New York including, but not limited to, Babylon, Brookhaven, East Hampton, Huntington, Islip, Riverhead, Shelter Island, Smithtown, Southampton, Southold, Glen Cove, Long Beach, Hempstead, Great Neck and Oyster Bay.


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