Associate Samantha Perlowitz and Managing Partner Alex Malino Achieve Rare Case Dismissal for Tenant and General Contractor in NY State Labor Law Claim.

Associate Samantha Perlowitz obtained a tremendous result for BMM clients, in a labor law case where we represented a top 40 Corporation in the US as a tenant as well as the general contractor for the construction project. The plaintiff alleged severe personal injuries and violations of NY Labor Law Sections 200, 240, and 241(6) when he was caused to be injured when a ladder fell, striking him in the head and upper torso and causing neurological injuries as well as personal injuries to his head and shoulders. The owners also sought indemnification against our clients. Working with partner Alex Malino, Samantha successfully argued that given the plaintiff was an employee of a subcontractor, the requisite control or notice did not exist for liability under Labor Law 200 against our clients.  Samantha successfully argued plaintiff’s claim was not covered under the ambit of Labor Law 240 as the plaintiff did not fall from a height nor did anything fall from a height onto the plaintiff which should have been secured.  Finally, the argument was made that the 241(6) claims weren’t properly pleaded as the plaintiff only alleged a violation of industrial code 23-1.21 which dealt with ladders and ladderways. Samantha argued the plaintiff was not using a ladder at the time and as such this industrial code was not applicable.

The court agreed with all of Samantha’s arguments and dismissed the plaintiff’s complaint in its entirety while also dismissing the owner’s indemnification claims as academic. This was aggressive lawyering in a case where the plaintiff wanted a significant six-figure settlement and thought this was a 240 case.  Knowledge of the law and its application is something we pride ourselves on at BMM.   

Samantha Perlowitz Achieves Summary Judgement on Behalf of BMM Client

Congratulations to Samantha Perlowitz, Esq. for her excellent, prevailing argument of the firm’s motion for summary judgment on behalf of our client, the third-party defendant employer in a Labor Law matter.

The plaintiff-employee claimed he had fallen from a ladder after it became unstable, causing him to lose his balance, when he had been shaking a “stuck” Sawzall while attempting to remove a 9’ section of pipe, located approximately 9’ from the floor. He testified that he had been directed to do so by an unidentified individual on the job site by the name of “Walter.” We had no employees by that name on the job.

The decision of the Hon. Aaron D. Maslow of the Supreme Court, Kings County, notes the employer could not be held liable for common law indemnification as there was no evidence propounded to establish its negligence. The employer was not responsible for the means and methods of the injury-producing work, since no one from the company had instructed or directed the plaintiff to cut any pipes or perform any plumbing on the job. The third-party defendant was not even tasked with performing work where the accident occurred.

The contractual claims of third-party plaintiffs were similarly dismissed. Judge Maslow noted that the contract only provided for indemnification arising out of the work covered by the contract “to the extent the work was performed by or contracted for…” and that the insurance procurement provisions only would have protected third-party plaintiffs for claims arising out of, or resulting from, the insured’s work. Here, since the plaintiff was engaged in work that fell outside the scope of the contract, the indemnification and insurance clauses were held inapplicable to the instant matter.

As there were no material issues of fact remaining for a jury to determine, our motion was granted, and the third-party action is now dismissed.

New York Legislation Grants a Temporary Lift on the Statute of Limitations for Abuse Victims

Barry McTiernan & Moore Associate Attorney Samantha Perlowitz attended the Perrin Conferences’ virtual Sexual Abuse Litigation and Coverage Conference held on May 18, 2022. This conference provides a platform for thought leaders in sexual abuse litigation and coverage to advance the discourse on these important subjects. It also serves as an opportunity for defense and plaintiff attorneys, in-house counsel, and insurance professionals to network and share knowledge. This conference consisted of five separate sections covering topics such as Trends in Sexual Abuse Litigation, Status of the Litigation, Damages in Sexual Misconduct Cases, Early Litigation Investigation and Settlement, Status of Bankruptcies in Sexual Abuse Cases, and Insurance Coverage Issues.

In 2019, New York Legislature passed the Child Victims Act, which created a one-year lookback window for survivors of childhood sexual abuse to file claims otherwise time-barred by the statute of limitations. When the Child Victims Act window closed in August 2021 (deadline extended due to COVID), over 10K cases had been filed. New York Senate sponsors of the Child Victims Act also sponsored the Adult Survivors Act, Senate Bill S66A, which was signed into law on May 24, 2022. This law creates a one-year lookback window for survivors of sexual assault that occurred when the individuals were over age 18 to bring a claim against their abusers regardless of when the abuse occurred. Claims under the Adult Survivors Act can only be revived within a one-year window which commences six months from the effective date of the act. Civil actions brought during the one-year window that was previously dismissed due to being time-barred or for failure to file a notice of a claim shall not be dismissed on these grounds.

Barry McTiernan & Moore represents educational, municipal, and religious organizations being sued under the Child Victims Act. BMM continues to be at the forefront of this evolving area of law, developing leaders in the defense against such claims. Our CVA team is led by Executive Partner Suzanne Halbardier, who has over 30 years of experience defending high-profile claims of sexual molestation and abuse. Based on the nature of the claims, the firm has developed tailored defense strategies and constantly partners with our clients to achieve the best results.