Traub Lieberman’s motion for Summary Judgment was granted on behalf of its client Carp Construction Corp. (“Carp”) in a decision issued by New York State Supreme Court on a construction site accident case. Carp was a general contractor for water mains, sewers and sidewalk and street renovations. Carp entered into a contract with the New York City Department of Design and Construction (“NYCDDC”) for the installation of water mains in NYC and had subcontracted the entire project to Clemente Brothers, Plaintiff’s employer. Plaintiff claimed to have sustained significant injuries while attempting to install a new pipe at the jobsite, including multiple fusion surgeries to his back. Plaintiff filed suit against Carp alleging violations of Labor Law §240(1), §241(6), §200, and common law negligence.
Traub Lieberman moved for Summary Judgment seeking dismissal of Plaintiff’s claims on several grounds. The court, agreeing with Traub Lieberman’s arguments, the Court held that Plaintiff’s claim did not fall within the purview of Labor Law § 240(1) as Plaintiff was at ground level at the time of the accident, and thus, his accident was not the direct consequence of a failure to provide adequate protection against a risk arising from a “physically significant elevation differential.” In dismissing the Labor Law § 241(6) claim, the Court held that Plaintiff failed to address Traub Lieberman’s argument regarding the inapplicability of these Industrial Code sections. With respect to Industrial Code § 23-1.7(d), the Court denied Plaintiffs’ cross-motion to amend the bill of particulars and held Plaintiff’s untimely assertion of this section would constitute a substantive change by adding a new theory to the case, and thus, would severely prejudice Carp in its defense.
Finally, in dismissing Plaintiff’s §200/common law negligence claims, the Court held that there was nothing within the record to indicate Carp exercised any control or supervision over Plaintiff’s work, and Plaintiff failed to raise a factual issue in this regard, despite his efforts to manufacture allegations in an affidavit submitted in support which contradicted his prior deposition testimony. Plaintiff waived any right to appeal the decision. Overall, Traub Lieberman was successful in obtaining a rare full dismissal of a New York Labor Law claim with significant injuries alleged by a well-known Plaintiff’s firm.