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Defense Verdict at Trial on Labor Law §240(1)
Plaintiff, a 48-year-old welder, claimed he was working on a five-foot
scaffold when it shook and caused him to fall to the ground. He claimed
severe and permanent injuries to his back and both knees – rendering
him permanently incapacitated from any type of work. He underwent three
knee surgeries, multiple spinal injections and was recommended for future
lumbar fusion surgery. Plaintiff brought claims against our clients, the
owner and general contractor, under Labor Law § 240(1) on the ground
that the scaffold was unsafe, did not have railings and failed to provide
him proper protection. At trial, through the use of party and non-party
testimony, photographs, and project plans, we established that the scaffold
was not five feet tall and did not require railings under the circumstances.
We also attacked plaintiff’s credibility with different versions
of the accident that he had reported to his Supervisor and medical providers
within weeks after the alleged incident. The jury returned a Defense Verdict
finding no violation of Labor Law § 240(1)!
(Supreme Court, New York County, June 2022)
Dismissal of Labor Law Action Upheld on Appeal
We successfully obtained an affirmance on appeal of a Bronx Decision dismissing
all claims against our client on the ground that, although our client
signed a contract to become the General Contractor BEFORE plaintiff’s
accident, it did not take over the responsibilities of the former General
Contractor until AFTER the accident.
The plaintiff claimed severe injuries when he fell into a construction
trench. Our client was hired to take over as General Contractor three
weeks before plaintiff’s accident, but due to a backlog of work,
did not begin work at the site until after the accident. The Supreme Court,
Bronx County, agreed and dismissed all claims against our client finding
that it was not a “contractor” or “agent of the owner”
for purposes of Labor Law liability at the time of plaintiff’s accident.
On appeal, the plaintiff and owner argued that the Contract imputed our
client with authority over the site as of the date it was signed, and
that this, together with our client’s Mechanic’s Lien seeking
payment as of the Contract date, shows our client was the General Contractor
regardless of when our client first showed up at the site. The Appellate
Division, however, adopted our argument that the Owner’s acknowledgment
that our client did not actually take over as General Contractor until
after the accident precluded liability, and affirmed the Order dismissing
all claims against our client.
(Appellate Division, First Department- March 2022)
Trip and Fall Case Dismissed Against Client, Town
Plaintiff was injured when she stepped in a hole in a road while jogging.
The road is owned and maintained by our municipal client (“Town”).
The plaintiff claimed the hole was the result of a prior negligent repair.
Plaintiff further argued the Town had prior written notice of the hole
through a telephone complaint that was reduced to writing by the Town
six weeks prior to the accident. On motion, we established that while
repairs were made more than two years before the accident, there were
no recent repairs that resulted in an immediate hazard as required to
hold the Town responsible for negligently creating the condition. We also
established through case law that making note of a telephone complaint
does not satisfy the prior written notice requirement to maintain suit
against the Town. In its decision on our motion, the court found that
the Town did not create the hole and did not have prior written notice
of it, and dismissed plaintiff’s complaint against our client as
a matter of law.
(Supreme Court, Suffolk County, January 2022)
Denial of Summary Judgment Reversed on Appeal – Case Dismissed!
Plaintiff, an employee of our commercial tenant, sustained severe injuries,
including fractures and tears to his left ankle, left knee and left shoulder,
and underwent four surgeries, as the result of a slip and fall on fish
skin on the sidewalk of our client’s market. Plaintiff sued the
sanitation company hired by our client and the landlord who, in turn,
commenced a third-party action against our client for indemnification
pursuant to our client’s lease. The lease required our client to
indemnify the landlord for injuries arising out of any acts or omissions
of our client or its agents. The Bronx Supreme Court denied our motion
summary judgment, finding that our client caused the condition. We appealed
this decision. In reversing the Bronx Court decision and dismissing the
third-party complaint against our client, the Appellate Division, First
Department, agreed there was no evidence that our client caused the fish
skin to be on the sidewalk. The evidence instead suggested the fish skin
fell to the sidewalk during the co-defendant’s garbage pick-up just
moments before plaintiff’s accident. Another successful result in
a high exposure slip and fall case!
(Appellate Division, First Department, November 2021)
Another Defense Verdict for Ajay Bhavnani!
In a two-car motor vehicle accident plaintiff sustained serious injuries
claiming that our client’s truck sideswiped her vehicle while it
was stopped. With thorough investigation during the discovery process,
including tracking down uninvolved non-party witnesses, and Mr. Bhavnani’s
effective trial strategy and questioning, the Queens County jury found
the evidence proved that our client was in the process of making a turn
on to a side street when it was the plaintiff’s vehicle that struck
the right rear of his truck. Case dismissed, and another defense verdict
for another happy client.
(Supreme Court, Queens County November 2021)
Labor Law Action Dismissed against Client Contractor
The plaintiff construction worker sustained serious injuries when he tripped
and fell over electrical cords at a residential renovation project. Our
client contractor was responsible for the heating and plumbing. Through
discovery and depositions, we established that our client was not responsible
for the materials that caused plaintiff’s fall. We moved for summary
judgment on the issue of liability. The court found that our client was
free from negligence and dismissed plaintiff’s complaint and all
cross-claims against our client as a matter of law.
(Supreme Court, Queens County October 2021)
Labor Law Claims Dismissed Against Plumbing Subcontractor
Plaintiff fell when he stepped on a cinder block with his right foot which
then became entangled in electrical extension cords causing him to fall
at a home renovation project in Queens. Plaintiff sustained a fractured
cervical vertebra and a fracture hip, necessitating a total right hip
Upon completion of all depositions, we moved for summary judgment on the
issue of liability showing the Court our client, a plumbing subcontractor,
was not the general contractor; did not supervise, control, or direct
the plaintiff’s work; did not place or use any of the electric cords
or subject cinderblock. The Court granted our motion dismissed all claims
and cross-claims for contractual and common-law indemnification against
(October 2021 Supreme Court, Queens County)
Plaintiff’s Negligence was Sole Cause of Accident
We represented the owner and operator of a supermarket with a loading dock
in the rear. The plaintiff delivery driver sustained knee injuries requiring
surgery when he attempted to rappel down from the loading dock by using
a cable hanging from the building. He commenced a lawsuit against our
client alleging our client was negligent in failing to provide a safe
means of egress from the loading dock. After the depositions, we filed
a motion for summary seeking an order dismissing plaintiff’s complaint
as a matter of law. We argued that our client was not negligent, had no
notice of any dangers posed by the cable, and that plaintiff’s act
of negligence in grabbing the cable and rappelling down from the loading
dock was the sole proximate cause of his injuries. The court agreed and
found that even if our client was negligent regarding the cable that plaintiff’s
intervening act of negligence was a superseding and sole cause of the
accident. Case Dismissed!
(Supreme Court, Suffolk County, October 2021)
Big Win for the Defense Bar! – Trial Verdict Dismissing Labor Law §240(1) Claim Affirmed on Appeal!
Plaintiff, a 44 year-old construction worker, was rolling a 1000 lb. steel I-beam on the ground using a long “make-shift” pry-bar. The steel I-beam rolled back, causing the bar to snap out of plaintiff’s hands and strike him in the face and head. He sustained fractured orbital bones in his face that required open reduction and internal fixation, traumatic brain injury with cognitive deficits and memory loss, neck injuries for which he underwent cervical discectomy and fusion at C3-4, and back injuries for which he had a double laminectomy and fusion at L3-4 and L4-5. Plaintiff claimed he was permanently disabled from employment and sought past and future lost wages in the amount of $1.5 million; past medical expenses of $550,000, and; future medical expenses in the amount $3 million.
Our involvement in this case began when the insurance carrier for the defendant site owner called upon us for a second opinion after former counsel recommended tendering the policy limits to settle the case. We opined that Labor Law §240(1) was not triggered under these facts, and the case was transferred to our firm to defend at trial.
The jury trial was held before Judge Robert J. McDonald in Supreme Queens. At the close of the plaintiff’s case, our firm moved for a directed verdict. We argued that §240(1) contemplated vertical motion and to allow this case to proceed under §240(1) would wrongly expand the findings of Runner and Wilinski and further undermine the purpose of Labor Law §240(1). After hearing from both sides, Judge McDonald agreed, granted our motion and dismissed plaintiff’s case as a matter of law. Plaintiff appealed.
On appeal, by unanimous decision, the Appellate Division, Second Department, affirmed the directed verdict agreeing that the case did not involve the kind of elevation-related risk contemplated by Labor Law §240(1). The court found that plaintiff and the steel beam he was rotating were both at ground level and did not call for the use of the protective devices mentioned in the statute. This case presents a shining example of the CK Difference! (Appellate Division, Second Department September 2020).
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