Traub Lieberman Attorneys Succeed in Having the Vast Majority of Claims Dismissed in Silvas, et al. v. Bridgeview Investors, LLC, et al.
May 29, 2009

On May 6, 2009, TLS&S attorneys Robert M. Leff, Robert S. Nobel and Sheryl Bruzzese obtained summary judgment in favor of defendant East Coast Construction Group Inc. (“East Coast”), dismissing all but one of decedent plaintiff’s Labor Law claims, which defendant counsel respectfully believes the court allowed to stand in error. In short, the Silvas, et al. v. Bridgeview Investors, LLC, et al. court dismissed plaintiff’s claims for (1) common law negligence and a Labor Law § 200 violation based on defendant’s lack of direction and control over plaintiff; (2) a Labor Law § 240(1) violation, finding that the removal of a barricade by plaintiff was the sole proximate cause of the accident; and (3) over twenty alleged Labor Law § 241(6) Industrial Code violations.

The accident leading to plaintiff’s death occurred on April 18, 2006, at a construction site located at 26 Broadway in Kings County. Defendant East Coast and plaintiff’s employer, non-party Demex Corporation (“Demex”), worked together at the site. Prior to the accident, plaintiff and another worker were instructed to remove debris from the interior of a building located on the site. When debris in the form of plywood began to accumulate, plaintiff’s co-worker informed their supervisor, and the supervisor instructed the two to pile plywood near a barricaded balcony door which led to an unsecured balcony. The workers, however, unfastened the barricade and placed the plywood onto to the balcony, after which time plaintiff fell from the balcony to his death.

In rejecting plaintiff’s claims for common law negligence and a violation of Labor Law § 200, which codifies the common duty of an employer to provide a safe place to work, the court stated that East Coast did not have direction and control over the plaintiff. Thus, East Coast could not incur liability for any of plaintiff’s injuries caused by an unsafe workplace. Specifically, plaintiff was not a “special employee” of East Coast—an employee transferred to another employer for a limited time. The court reasoned that despite an agreement between Demex and East Coast granting East Coast the authority to supervise the work of Demex laborers, all other evidence directly indicated that plaintiff was an employee of Demex. For example, East Coast did not pay any of plaintiff’s salary, insurance, or Worker’s Compensation benefits. As such, the fact that plaintiff worked together with East Coast as part of his Demex employment duties did not transform him into a special employee for liability purposes.

Regarding the Labor Law § 240(1) violation, the court found that plaintiff’s unfastening of the barricade in order to place the plywood on the balcony constituted the sole proximate cause of plaintiff’s subsequent death. The court explained that no § 240(1) violation could occur where the plaintiff was provided with adequate safety devices yet refused to use them. Here, another co-worker’s testimony corroborated that plaintiff received specific supervisory instructions not to remove the barricade and not proceed to the balcony, but plaintiff nevertheless did so. The actions leading to plaintiff’s death were not part of his job function or description; his actions alone constituted the sole proximate cause of his death.

Finally, with respect to the more than twenty § 241(6) Industrial Code violations claimed by plaintiff, the court found only one such provision to be an applicable issue of fact for the jury. TLS&S counsel assigned to this case respectfully believes, however, that the court’s decision with respect to this provision is a wholly appealable error. The applicable section, 12 NYCRR 23-1.22(c)(2), concerns the installation of safety railings on platforms standing more than seven feet above the ground. The clear language of the statute refers only to platforms used to transport vehicular traffic, which was not the purpose of the platforms used in the construction project at issue. Yet the court reasoned, without clear explanation, that there existed a question of fact as to whether the statute’s aim is limited to such vehicular-transport platforms.  As such, the court also denied defendant East Coast’s motion to dismiss a claim for damages finding that same must await evidence at trial.

Copies of the Supreme Court, Kings County decision and order relating to this summary judgment motion are available for your reference. Any questions may be directed to Robert M. Leff.