Barry McTiernan & Moore partner Alex Malino recently argued and obtained a dismissal in a Labor Law case where we represented the defendant general contractor.
The plaintiff was a union worker who fell while entering a freight elevator during construction of a major department store. Plaintiff alleged severe personal injuries and a permanent disability, claiming he will never work again. The injuries included an emergency anterior cervical discectomy and interbody fusion at two levels.
Plaintiff’s counsel alleged violations of Labor Law sections 200, 240 and 241(6) against our client, who was the general contractor. We argued that there is no requirement under the Labor Law for a perfect work place based upon the Court of Appeals’ decision in Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 429 N.E.2d 805, 445 N.Y.S.2d 127 (1981). It was argued that “[a]n implicit precondition to this duty to provide a safe place to work is that the party charged with that responsibility have the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition”. Id.; see also Comes v. New York State Electric and Gas Corporation, 82 N.Y.2d 876, 631 N.E.2d 110, 609 N.Y.S.2d 168 (1993); Cruz v. Toscano, 269 A.D.2d 122, 702 N.Y.S.2d 289 (1st Dept. 2000).
Alex successfully argued that the general contractor did not have the authority over the operating engineer or elevator contractor who may have been operating the freight elevator at the time of the accident. The court agreed and dismissed the Labor Law 200 claim. Plaintiff did not oppose the dismissal of the Labor Law 240 claim. On the final claim under Labor Law 241(6), plaintiff argued the applicability of several Industrial Codes through the retention of a construction expert who attested numerous codes were violated. However, Alex marshalled the discovery conducted and argued that the plaintiff was not walking through a passage way, but was instead walking in a wide open area at the time of his accident. Thus, the specific Industrial Code sections argued by plaintiff were not specific enough, per precedent, to support a Labor Law 241(6) claim. In its ruling, the court concluded that Industrial Code sections 23-7.3(e), “Temporary use of Permanent Elevators” and 23-7(c), “Personnel Hoists” were not specific enough and there was no showing of an Industrial Code violation necessary to support plaintiff’s Labor Law 241(6) claim. Accordingly, the court granted summary judgment to our client on the Labor Law 241(6) claim.
Notwithstanding a tough jurisdiction, knowing and understanding the applicable codes and case law before and during discovery is imperative to favorable results. Despite being the general contractor on a major construction site accident, we successfully obtained a dismissal for our client and its insurer. Strong defenses exist in cases involving the Labor Law when timely developed and appropriately argued. Congratulations to Alex and his team.