In an action involving a claim of serious bodily injuries sustained to an injured plaintiff who fell from a height at a construction site, this office represented the statutorily liable fee owner, tenant, and general contractor. We successfully obtained summary judgment, and the dismissal of plaintiff’s Labor Law 200 and Common Law Negligence causes of action, as well as all cross-claims asserted against our clients. In addition, we also successfully obtained summary judgment on our clients’ contractual indemnification claims against the plaintiff’s employer.
Representing the property owner and general contractor in the defense of a two related wrongful death claims involving an ironworker who fell thirty-five feet to his death, and a crane operator who was crushed to death by a falling beam, both of whom were asserting Labor Law violations, our clients were summarily awarded both contractual and common law indemnification from the steel fabrication and erection company and the plaintiff’s employer, resulting in a complete pass through of liability to those entities.
Leighton v. R.J.K. Electric Corp., et al. / Leighton v. Chaber, LLC (Supreme Court,
In related personal injury actions arising out of the same accident, we represented the
property owner and commercial tenant against whom plaintiff asserted Labor Law and
negligence claims. We moved for summary judgment on behalf of our clients and
plaintiff conceded that our clients were entitled to dismissal of the Labor Law § 200 and
common law negligence causes of action. Plaintiff’s opposition to our motion was
limited to his Labor Law § 241 (6) claims predicated on two specific provisions of the
Industrial Code of the State of New York. The court initially granted summary judgment
in our clients’ favor only as to one of the Industrial Code provisions, finding it
inapplicable to the facts of the case, but denied summary judgment as to the other
provision based on plaintiff’s argument that a question of fact existed as to whether
plaintiff was a worker or a passerby at the time of the accident. However, upon our
motion to reargue, the court granted reargument and granted summary judgment
dismissing the complaint entirely as against our clients. The court agreed with our
contention that if plaintiff is considered a construction worker at the time of the accident
then Industrial Code then Section 23-1.33 of the Industrial Code does not apply to him;
while on the other hand, if plaintiff is considered a passerby at the time of the accident
then he is not among the protected class of persons entitled to assert a Labor Law §
241 (6) claim.
Moye vs. I&G Group, LLC et al.
In a Labor Law §241(6) action involving the trip and fall of a demolition worker over job site debris, in the defense of the general contractor, we successfully obtained summary judgment and the dismissal of the complaint. The Court agreed with our position that there had been no Labor Law § 241(6) violation because the debris over which the plaintiff tripped was “integral” to his work.
Heavey v. Claremont House Condo, et al. (Supreme Court, New York County)
In an action involving a trip and fall on a defective New York City sidewalk, we obtained
summary judgment in favor of our client by establishing that our client did not owe a
duty of care to the plaintiff to maintain the area of the sidewalk which is alleged to have
caused her accident. We successfully demonstrated that raised sidewalk flag upon
which plaintiff allegedly tripped was located entirely on the sidewalk abutting the
neighboring property, not on the sidewalk abutting our client’s property. Further, based
on our offering ample photographs along with testimony of our client, the court held that
our client maintained the sidewalk abutting its building in a reasonably safe condition.
Hernandez vs. CTK Development Corp. et al.
In an action involving a trip and fall on a defective New York City sidewalk, we obtained summary judgment in favor of our client by establishing that our client did not owe a duty of care to the plaintiff to maintain the sidewalk which is alleged to have caused this accident. Our client owned a property which was down the block from the location of the accident.
Colletti vs. The City of New York et al.
In an action for bodily injuries brought by a motorcyclist, we obtained summary judgment and the dismissal of the complaint against our client, a food delivery service that had double-parked its truck in the roadway. The Court agreed with our arguments that the actions of the food delivery service were not the proximate cause of the plaintiff’s injuries.
Gambino vs. 475 Park Avenue South LLC et al.
In an action involving a slip and fall on an icy New York City sidewalk, in the defense of the managing agent of the adjacent property, we obtained summary judgment and the dismissal of the complaint and all cross-claims asserted against the managing agent on the grounds that as managing agent our client did not owe a duty of care to the injured plaintiff.
Vetrano vs. Food Parade, Inc. et al.
In a Labor Law § 240(1) action involving the fall from a height of an ironworker, on summary judgment we obtained a conditional order of indemnification and defense in favor of our client, the supermarket/property owner, against the general contractor of the project.
Dean v. Greystone Properties 76, LLC et al., (Supreme Court, Kings County)
Representing a third-party defendant contractor, we prevailed on summary judgment in
an action arising out of an accident in which plaintiff stepped from a fire escape onto a
sidewalk shed and fell through a hole in a sidewalk shed to the sidewalk below.
Komorsky v. Kimco Realty, et. al.
Motion for summary judgment was granted in favor of our client, an out of possession landlord where it was demonstrated that the landlord had no duty or obligation to maintain the incident location, nor did it make any repairs to the area. Moreover, co-defendant’s motion for contribution and common law indemnification against our client was denied. The Court set forth that since the landlord successfully established its entitlement to summary judgment, there was no evidence that the landlord was negligent or at fault for the alleged icy condition. Thus, the Court concluded that there was no merit for any cross claims - common law indemnification or contribution - against the landlord.
Lata vs. The Rector Church Wardens and Vestrymen of Grace Church et al.
In a Labor Law § 240(1) action, involving the fall by a worker from a scaffold, in the defense of the plaintiff’s employer, we successfully obtained summary judgment and the dismissal of the third-party complaint asserted against our client by establishing that there was no written agreement to indemnify. The Court agreed with our arguments that the work being performed by the plaintiff at the time of the accident was not contained within the scope of work of the contract between the property owner and our client, but instead, was performed pursuant to a different, verbal agreement.
Marques vs. 1407 Broadway LLC et al.
In a Labor Law § 240(1) action involving a fall from a scaffold by an injured construction worker, in the defense of the project general contractor, we successfully obtained summary judgment and an order of contractual indemnification and defense in favor of the general contractor, and against a subcontractor.
Fernandez v. Salmar Properties, LLC, et al. (Supreme Court, Kings County)
Representing a general contractor hired by the property owners, we successfully
demonstrated that the asphalt paving work being performed by plaintiff and his
employer in the building’s parking lot was outside of the scope of renovation work that
our client was contracted to perform at the building and that our client did not exercise
supervisory control over the work being performed by plaintiff’s employer; therefore, our
client had no duty to plaintiff under the Labor Law or common law negligence.
Fedrich v. Granite Building 2, LLC, 165 A.D.3d 759 (2d Dep’t 2018)
The Appellate Division, Second Department affirmed the Supreme Court’s
determination to grant the motion on behalf of our clients for summary judgment
dismissing plaintiff’s General Municipal Law § 205–a cause of action, agreeing with our
arguments that plaintiff, a Nassau County Fire Marshal, did not qualify for protection
under the statute.
Matter of Hertz Vehicles, LLC v. Monroe, 138 A.D.3d 847 (2d Dep’t 2016)
Thomas B. Hayn, representing an out-of-state automobile insurance carrier, prevailed in
opposition to a petition to stay uninsured motorist arbitration both at hearing and on
appeal. At a framed-issue hearing, the Supreme Court, over Mr. Hayn’s evidentiary
objection, ruled that the claimant met her burden of sufficiently identifying the alleged
offending vehicle, but upon shifting the burden nevertheless found in our insurance
carrier client’s favor, ruling that the Florida policy of insurance was validly cancelled
under applicable Florida law. On claimant’s appeal, Mr. Hayn successfully argued that
the Supreme Court erred in admitting the documentary evidence offered by the claimant
at the hearing and that absent such evidence claimant could not overcome her initial
burden of proof to identify the alleged offending vehicle. The Second Department
affirmed the hearing decision on this alternate ground.
Chee v. DiPaolo:
Vincent Battista’s client, defendant-landowner, was awarded summary judgment dismissal of the complaint against it, on a premises liability action arising out of the alleged defect in the concrete sidewalk abutting the client’s property.
Attorney Battista used the plaintiff’s testimony and photographs of the incident location to successfully argue that the plaintiff knew the area well, the area was well-lit and that the defect was so minimal in size as to be trivial.
This result survived plaintiff’s appeal, and was instead affirmed by the Appellate Division, Second Department.
Motion to Dismiss Against Out-of -Possession Landlord and Subsequent Change of Venue
In this personal injury action, Christine Capitolo, representing both the out-of-possession landlord and the tenant supermarket in possession, filed a motion to dismiss against the landlord and to change the venue from Kings County to Westchester County. The first branch of the motion was premised on the landlord’s lack of control, as supported by the lease which imparted maintenance duties to the tenant. The argument supporting the change of venue branch was part of a strategic consideration to relocate the litigation to the defendant-favoring Westchester County. The dismissal against the codefendant-landlord forced a fresh analysis of proper venue, as the Court had found previously that venue in New York County was supported by the location of landlord’s principle place of business.
The court found persuasive Attorney Capitolo’s argument that, once the action was dismissed against the out-of-possession landlord, proper venue should be the county of plaintiff’s residence, Westchester County, as supported by the correct reading of CPLR § 503(a). Simultaneously, the court found plaintiff’s reliance on CPLR § 509 to be misplaced, rendering ineffective plaintiff’s would-be choice of venue in Kings County. Ms. Capitolo’s argument was supported by Clase v. Sidoti, 20 A.D.3d 330, 799 N.Y.S.2d 194 (1st Dept. 2005), which states “where the venue is placed on the basis of the principal place of business of an improper party, a motion to change venue should be granted after the action is dismissed against the improper party.” Her argument on behalf of the client has afforded a favorable environment for subsequent litigation proceedings.
Summary Judgement for Restaurant and Landlord in Alleged Slip-and-Fall
Ellie Konstatatos’ clients, a restaurant and an out-of-possession landlord from which the restaurant leases the premises, were awarded summary judgment dismissing all claims in a personal injury action arising out of a slip and fall on the defendants’ premises. The plaintiff claimed to have observed a wetness and oily sheen on the tiles while on the floor and alleged that employees of defendant caused such a condition.
Attorney Konstantatos argued that the defendants established a prima facie entitlement to summary judgment based on lack of constructive or actual notice. In so arguing, Ms. Konstantatos relied on evidence of the daily cleaning regimen of the restaurant, as was reflected in the extensive employee testimony on the cleaning procedure performed on the date of the incident, and the manager’s testimony that upon walk-through inspection shortly before and after the incident the floor was found to be dry. The Court found that plaintiff’s counterargument that defendant caused a substance to be on the floor was speculative, as it lacked a basis in admissible evidence.
Amendola v. MLTK, LLC
Attorney Patricia Golden prevailed on a motion for summary judgment to dismiss all claims against her client, the owner of a supermarket. In this action, the plaintiff alleged that she was caused to fall due to the presence of “too much wax” on the supermarket floor, but did not make any other complaints or allegations regarding a defective or dangerous condition at the location of the incident other than stating that the floor was slippery and shiny. Ms. Golden successfully argued that where a plaintiff alleges only “too much wax” and neither alleges that there was negligent application of same, nor presents any expert evidence, New York courts have held that there is no cause of action. Read the full decision here.
Burgess v. Annie Sez, et al. (Supreme Court, Suffolk County)
Representing the owner of a shopping center, we successfully demonstrated by
photographic evidence and witness testimony that the cracked paver on which plaintiff
claims to have tripped was a trivial defect and not actionable, thereby entitling our client
to summary judgment dismissing plaintiff’s complaint.
In an action in Supreme Court, Bronx County with the caption, DAVID JOHNSON vs. WYTHE PLACE, LLC AND RAGOO OUDHORAM , Justice Julia I. Rodriguez granted defendant’s motion for summary judgment.
Read the full decision for details.
In an action in Supreme Court, Nassau County involving a trip and fall over a pallet of merchandise in defendant’s big box store, Justice Robert A. Bruno granted defendant’s motion for summary judgment. The Court held that the defendant established its prima facie burden of showing that the pallet of wood upon which plaintiff claims to have fallen was readily observable by the reasonable use of one’s senses and was not inherently dangerous. Further, the Court found plaintiff’s argument that the wooden pallet created a dangerous condition because it was left in an aisle to have been unavailing.
Thomas B. Hayn, representing an automobile insurance carrier, successfully opposed the petition to stay uninsured motorists arbitration arising out of an accident in New York State, arguing that Florida law governed the cancellation of a policy of insurance written in Florida to an individual claiming to reside in Florida. Following a hearing, the court ruled that our client’s cancellation of the policy on the basis of non-payment of premiums was effective under applicable Florida law and denied the petition.