Archive:January 2011

Lynch v. 99 Washington, LLC, 80 A.D.3d 977, 915 N.Y.S.2d 353 (N.Y. App. Div. 3d Dep’t 2011)

In Lynch, the plaintiff injured his knee when stepping out of a trailer on a job site onto a free-standing stairwell that was allegedly misaligned with the trailer.  He sued under New York Labor Law and advanced common law negligence theories.  The Appellate Division, Third Department, held that the defendant’s motion for summary judgment should have been granted on all claims, reasoning that because the plaintiff was not performing construction work when the injury occurred, recovery was not available under a statute providing a cause of action for work-related injuries.

Logan-Baldwin v. L.S.M. Gen. Contractors, Inc., 914 N.Y.S.2d 617 (N.Y. Sup. Ct. 2011)

In this case, the homeowner plaintiffs sued the contractor, subcontractors, and their principals alleging breach of contract and fraudulent inducement, arising out of a renovation project in their historic Rochester home.  A subcontractor moved for summary judgment, alleging lack of privity with the plaintiffs, who defended on the ground that the subcontractor failed to plead lack of privity in its answer, thereby waiving that defense.  The Supreme Court granted the defendant’s motion, finding that privity is an essential element of a breach of contract claim and allowing the defendant to amend its answer to add the defense of privity.  The court emphasized that this was a matter of judicial discretion, and the defense appeared to have merit, the general rule being that an owner has no privity with a subcontractor.  Here, the court found no clear language to the contrary.
 

10 Ellicott Square Court Corp. v. Mountain Valley Indemnity Co., 2010 WL 5295420 (2d Cir. Dec. 28, 2010)

In this case, the plaintiffs were, respectively, the owner and construction manager of a commercial building project in Buffalo.  They contracted with a third firm for interior demolition in the building; the construction agreement required the demolition company to secure insurance to cover legal liability resulting from the demolition project.  The company secured a primary policy and an umbrella policy from the defendant, which issued a certificate of insurance naming the plaintiffs as additional insureds.  The primary policy specifically required the underlying construction agreement to be “executed” for any injury to be covered by the policy, but before the agreement was signed, a worker was injured and sued.  The defendant declined coverage, arguing that the construction agreement had not been executed in time.
 

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