Tag:New York

Baker v. City of Plattsburgh, 847 N.Y.S.2d 300 (N.Y. App. Div. 2007)

In this case, plaintiff sought recovery of property damages due to water runoff caused by a utilities renovation and paving project carried out by defendants on an adjacent property.  The Supreme Court granted defendants’ summary judgment motion, dismissing the causes of action against them alleging that water runoff caused property damage.  However, defendants’ motion papers did not specifically address the remaining causes of action for trespass, due process rights violations and zoning ordinance violations, and thus those claims remained.

Read More

Fabcon East, LLC v. Steiner Bldg. Co. NYC, 848 N.Y.S.2d 267 (N.Y. App. Div. 2007)

In this case, the court upheld an award of damages and contractually-based attorneys’ fees to plaintiff, finding sufficient support for the conclusion that defendant had breached the parties’ construction subcontract and the implied covenant of good faith and fair dealing.  However, the court reduced the attorneys’ fee award in the amount of $19,250.50 — the amount of fees incurred by plaintiff in a separate action commenced against it by a sub-contractor.  The court explained:  “the subcontract provision dealing with an award of contractual attorney’s fees to the prevailing party in a covered action did not include the New Jersey action, to which [defendant] was not a party.”

Butt v. Bovis Lend Lease LMB, Inc., 2007 WL 4260519 (N.Y. App. Div. 2007 Dec. 6, 2007)

In this case, plaintiff sued for common law negligence and Labor Law violations, seeking to recover for injuries allegedly sustained when he fell from ladder while plastering a ceiling beam of an interior stairwell at a public school.  Defendants included the City of New York which owned the premises, the Board of Education which operated and maintained the premises, the general contractor, and the construction manager.  Defendants moved to dismiss the Labor Law violations on summary judgment, arguing that the work the plaintiff was performing when he was injured was outside the scope of his contract, and thus was not covered by the Labor Law.  The court denied the motion, finding that such a defense only applied to the benefit of parties who did not have authority to supervise or control the work at issue.  The court explained that such a defense would not apply to the owner’s liability because injury to a worker may not be circumscribed by contract.  Further, conflicting evidence had been presented as to whether the work was outside the scope of the contract., and so the issue was not capable of resolution on summary judgment. 

Urbina v. 26 Court St. Assocs., LLC, 847 N.Y.S.2d 67 (N.Y. App. Div. 2007)

This case involved causes of action for negligence, violations of Labor Law §§ 200, 240(1) and 241(6), and loss of consortium brought by an electrician, Urbina, and his wife.  Plaintiffs sought to recover damages for injuries sustained when a platform upon which Urbina was kneeling collapsed at a construction site.  That platform had been installed by the drywall subcontractor, R&J Construction Corp. for its own use.  Plaintiffs brought claims against the owner of the premises, the lessee of the premises, and R&J.  The issues on appeal involved the reasonableness of the damages awarded to plaintiffs, and contractual indemnification between defendants. 

Read More

Wysocki v. Kel-Tech Constr. Inc., 847 N.Y.S.2d 166 (N.Y. App. Div. 2007)

Here, the court denied the defendants’-contractors’ summary judgment motion to dismiss the breach of contract claims brought against them by plaintiffs-construction workers.  The court reasoned that the plaintiffs’ contractual rights would be independent of a collective bargaining agreement whether or not Labor Law § 220 was incorporated into the public works contracts at issue.  The court explained that Labor Law § 220 applies across the board, making its requirements non-negotiable.  Therefore, the collective bargaining agreement did not have any bearing on the public works contracts at issue in the case.

Felice v. Am. A.W.S., Corp., 846 N.Y.S.2d 656 (N.Y. App. Div. 2007)

In this action, plaintiffs sought to recover for personal injuries and property damages arising out of defendant’s renovation of plaintiffs’ residence.  Plaintiffs alleged that defendant had negligently performed the work, resulting in water leaks and the formation of mold.  Defendant sought leave to interpose an amended answer which included, inter alia, the affirmative defense of statute of limitations.  Defendant contended that the plaintiffs’ causes of action sounded in negligence and thus were governed by a three-year statute of limitations. 

Read More

Mulcaire v. Buffalo Structural Steel Constr. Corp., 846 N.Y.S.2d 838 (N.Y. App. Div. 2007)

In this case, a construction worker and a family member alleged Labor Law and common law negligence causes of action for injuries plaintiff sustained while installing floor decking in a building undergoing construction.  Plaintiff slipped and fell through an uncovered opening approximately 18 feet to the floor.  The trial court granted in part and denied in part plaintiffs’ motion for summary judgment, and denied defendants’ motion for summary judgment.  Defendants appealed.

Read More

Amerson v. Melito Constr. Corp., 845 N.Y.S.2d 457 (N.Y. App. Div. 2007)

In this case, the Second Department reversed a finding of summary judgment concerning an alleged violation of Labor Law § 241(6).  Plaintiff, a masonry subcontractor, was injured while performing his duties at the construction site when a concrete block fell on his head.  At the time he was injured, plaintiff was wearing a hard hart and had various pieces of equipment, including a chipping hammer, scraper, shovel and wheelbarrow, in his possession as needed to perform his work. Read More

Saccenti v. City of New York, 846 N.Y.S.2d 236 (N.Y. App. Div. 2007)

In this action based on Labor Law §§ 200 and 241(6) and common law negligence, the Second Department examined the lower court’s grant of summary judgment on all claims to defendant Hallen Construction, a subcontractor hired by a third-party defendant.  The claims involved injuries plaintiff sustained when he tripped over a spike Hallen had installed at the construction site in order to affix steel plates covering the trench it was excavating.
Read More

Franco Belli Plumbing & Heating & Sons, Inc. v. Imperial Dev. & Constr. Corp., 845 N.Y.S.2d 446 (N.Y. App. Div. 2007)

In this case, the appellate court reversed a default judgment entered against defendant New York City School Construction Authority (“SCA”).  Plaintiff had claimed that Imperial Development & Construction Corp., the general contractor, owed over $253,000 to it as the sub-contractor for plumbing work on the project.  Imperial disputed the claim.  Pursuant to Public Authorities Law § 1735(6), plaintiff notified SCA, as the owner of the property where the disputed work took place, of its dispute with Imperial.  Also pursuant to that law, SCA was required to withhold the disputed amount of money from any payments it made to Imperial pursuant to the construction contract.  After plaintiff filed a note of issue, SCA disclosed that it had failed to withhold any money on plaintiff’s behalf.  Consequently, plaintiff moved to preclude SCA from introducing evidence regarding setoffs and back-charges with respect to its contract with Imperial on the basis that SCA had failed to respond to interrogatories seeking such information.  The Supreme Court granted this motion upon SCA’s default. Read More