Mott v. Tromel Constr. Corp., 79 A.D.3d 829, 912 N.Y.S.2d 685 (NY App. Div. 2010)

In Mott, the plaintiff was injured on an elementary school construction site when he tripped on a piece of string stretching into the hallway from a classroom.  He sued the contractor, the school, and a subcontractor that was allegedly responsible for placing the string as part of a flooring project.  The Appellate Division, Second Department, denied the defendant’s motions for summary judgment, finding that there were triable issues of fact regarding (1) whether or not the contractor had actual or constructive notice of the dangerous condition, and (2) whether the string posed a “tripping hazard” within the meaning of New York’s local rules, whether the hallway was a “passageway” under the law, and whether the string was integral to and consistent with the work the plaintiff was performing.

Whitehead v. City of New York, 79 A.D.3d 858, 913 N.Y.S.2d 697 (NY App. Div. 2010)

In Whitehead, the plaintiff allegedly was injured when a load of steel tubes rolled out of a hoist when the bindings were removed; the plaintiff fell and was struck by two tubes.  He sued the general contractor and owner under New York’s labor law and common law negligence theories.  The owner impleaded the steel construction subcontractor for contribution and indemnification.  The Appellate Division, Second Department, denied plaintiff’s motion for summary judgment, finding that the plaintiff was not subject to an elevation-related hazard since the steel tubes were at the same level as him.  The court also denied the third-party plaintiff’s motion for summary judgment on the grounds that it was untimely submitted with no excuse offered for the delay.

Ramsey v. Leon D. Dematteis Constr. Corp., 79 A.D.3d 720, 912 N.Y.S.2d 654 (NY App. Div. 2010)

In Ramsey, the plaintiff, an apprentice elevator mechanic and employee of a subcontract elevator company, was injured in a fall while constructing an elevator shaft as part of a school construction project.  He sued the general contractor and the property owner for failing to provide proper safety protection and failing to maintain an elevated workplace free from dangerous conditions under New York’s Labor Law and common law negligence theories.  The contractor had provided two aluminum planks, which stretched about a foot in either direction beyond the shaft, for the plaintiff to stand on, secured by placing wooden beams on top of either end.  The Appellate Division, Second Department, denied both the plaintiff’s and contractor defendant’s motions for summary judgment, finding that triable issues of fact existed as to whether the safety precautions were sufficient, and as to whether the materials plaintiff allegedly slipped on were integral to the work or mere “debris.”  But the court found that the building owner was entitled to summary judgment since it had no actual or constructive notice of the allegedly dangerous condition.

Metro. Steel Indus., Inc. v. Graphics for Steel Structures, Inc., 2010 WL 5583038 (E.D.N.Y. Dec. 7, 2010)

In Metropolitan Steel Industries, the plaintiff contractor alleged that the defendant subcontractor breached its contract with the plaintiff by failing to completely perform; the defendant counterclaimed for the unpaid balance.  The plaintiff then sought to amend its complaint and assert a claim for fraudulent inducement on the grounds that the defendant failed to disclose its intention to use outsourced labor, but its motion was not timely filed.

The magistrate judge dismissed the fraudulent inducement claim on the grounds that there was no confidential or fiduciary relationship between the parties, as well as because they were duplicative of the primary breach of contract claim, since the terms in question were directly related to the parties’ agreement, rather than being collateral in nature.

DeFilippo v. Knolls of Melville Redev. Co., No. 00-21112, 2010 WL 4904665 (Sup. Ct. Suffolk Co. Nov. 30, 2010)

In DeFilippo v. Knolls of Melville Redevelopment Co., a subcontractor employed the plaintiff, who sustained personal injuries while working.  Plaintiff originally brought suit against four defendants but lost at summary judgment.  Plaintiff then sought to amend his complaint to add a new defendant, Arlen Contracting Corp. Arlen argued that plaintiff’s claims against it were time barred by the three-year statute of limitations.  Plaintiff alleged that the claims should go forward because the lower court properly held that his claims were exempted from the statute of limitations.  The court disagreed and found that because Arlen did not have an opportunity to oppose plaintiff’s argument, as it was not a party to the lower court’s decision, Arlen would be given a chance to litigate the issue.

Metro Found. Contractors, Inc. v. Marco Martelli Assocs., Inc., 78 A.D.3d 594, 912 N.Y.S.2d 187 (N.Y. App. Div. 2010)

In Metro Foundation Contractors, the Appellate Division, First Department, denied the plaintiff subcontractor’s motion for summary judgment, finding that fact issues remained as to whether the plaintiff defaulted under the subcontract and as to whether defendant general contractor’s payments to the plaintiff and to vendors were proper.  The court did hold that the defendant did not violate New York’s lien law in paying trust funds to the plaintiff and vendors, who were the proper beneficiaries.

Safeco Ins. Co. v. M.E.S., Inc., No. 09-cv-3312, 2010 WL 4828103 (E.D.N.Y. Nov. 22, 2010)

In Safeco Ins. Co. v. M.E.S., Inc., the court decided which parameters should be considered when determining the amount of collateral to which an insurer of construction projects is entitled.  In this case, defendant construction companies executed indemnity agreements with plaintiff insurer.   Plaintiff sued to secure collateral under the indemnity agreements, arguing that it was entitled to several million dollars from each defendant as collateral security.  Defendants argued that the amounts should be reduced for several reasons, including (i) the fact that the insurer failed to revise its costs estimate to reflect the actual amounts of the subcontract awarded, and (ii) the insurer had several accounts receivable whose proceeds should be used to cover insurer’s costs.  The court agreed with the defendants on the first argument but not the second; the court determined the appropriate amount of collateral not by seeking mathematical certainty, but by applying New York’s reasonableness standard to construe the facts and the documentation submitted by the parties.

Mount Vernon City School Dist. v. Nova Cas. Co., 78 A.D.3d 1028, 912 N.Y.S.2d 98 (N.Y. App. Div. Nov. 23, 2010)

In Mount Vernon City School District, the plaintiff school district contracted with the defendant to provide heating, ventilation, and air conditioning work at a middle school.  The defendant secured a performance bond from the defendant surety.  Ultimately, the contractor failed to complete the work, and the surety refused to perform under the bond.  The district sued both the surety and the contractor for breach of contract.  The contractor had requested that payment be sent to the state Department of Labor, to be applied to a claim in another school district, and the surety argued that it should succeed to the contractor’s rights under its contract.

The Appellate Division, Second Department, disagreed, holding that the surety was not a fully paying and performing party, and that therefore it did not succeed to the rights of the payment beneficiaries.  Furthermore, the court held that the district did not breach the payment terms of the performance bond by paying the money over to the Department of Labor on request.  Finally, the court found that the school district was not entitled to attorney’s fees, since nothing in the parties’ agreements provided for such fees.