Traub Lieberman Straus & Shrewsberry LLP attorneys Mario Castellitto and Timothy G. McNamara recently obtained dismissal of a tort complaint stemming from a construction site worker’s alleged injuries. In Sawicki v. AGA 15th Street, LLC, Skyward CM, et. al., Index No. 113886/11 (N.Y. Sup. Ct. New York County), plaintiff alleged that defendants, respectively the owner and construction manager of the project, were liable due to violations of Labor Law §§200 and 241(6) for plaintiff’s injuries occurring when a Bobcat construction vehicle ran over his foot.
Plaintiff asserted numerous injuries, including a stress fracture of the second metatarsal shaft, a crush injury to his left foot and ankle, derangement of both knees with pain and swelling, and various neurological complications. After missing three (3) months from work, plaintiff returned to employment in the same field.
Following completion of discovery, including non-party depositions, TLSS filed a motion for summary judgment. As to the allegations pursuant to Labor Law §200, defendants argued that they played no supervisory role during the demolition phase of work, when plaintiff’s incident occurred. Testimony of a witness affiliated with the defendants was that the owner and construction manager were essentially sequestered in an office trailer outside the project perimeter, waiting for the construction phase to begin.
The other branch of the TLSS dispositive motion relied on the lack of proof that the involved Bobcat vehicle was ill-maintained or had a nonworking back up beeper warning system. TLSS pointed out that: 1) plaintiff did not see the Bobcat prior to the moment of contact, and therefore cannot credibly say whether it was going forward or in reverse (plaintiff alleged that the latter direction would have required an operating back up beeper); and 2) plaintiff did not tell anyone or claim that the back up beeper was inoperable on the involved Bobcat until over one (1) year later, in his lawsuit deposition. The court thus found that “there is no evidence that the Bobcat driven by Blazewski was defective,” and thereupon dismissed the remaining claim under Labor Law §241(6).