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NAB Construction seeks partial summary judgment

A Bronx Estate Lawyer said that, by decision and order dated November 12, 2008, the motion brought by fourth-party defendant to dismiss the cause of action in the fourth-party complaint sounding in common law indemnification and contribution, was granted for the reasons stated on the record at oral argument. Remaining to be decided arc the cross-motions by third-party defendant Transportation Group which is defending against claims for indemnification and contribution asserted by NAB Construction Corporation, and by defendant/second third-party plaintiff.

NAB Construction seeks partial summary judgment and dismissal of the Labor Law causes of action, and Parsons Transportation seeks summary judgment and dismissal of the complaint in toto, both moving pursuant to CPLR 3212, and 3211 (a) (1) and (7). Parsons in the alternative seeks leave to amend its answer to add defenses and counterclaims of contractual indemnification and contribution as against NAB. For the reasons which follow, both cross-motions are granted in part and otherwise denied.
This is an action based on alleged violations of Labor Law ^§ 240 (1), 241(6) and 200 and on common law negligence. Plaintiffs seek to recover damages for personal injury sustained by the employee on January 7, 2003, while working as an inspector on the Bronx-Whitestone Bridge. The employee alleges he was injured when he was blown by a wind gust from his position on the bridge cable, causing him to fall to a platform positioned a few feet below.

The bridge is owned and operated by the Triborough Bridge and Tunnel Authority (TBTA). The TBTA contracted with NAB Construction Corporation, the remaining defendant in the main action, to perform as the general contractor for the project described as Contract PSC-00-2589, “Construction Inspection and Support Services for Project BW-82A, Truss Removal and Installation of Aerodynamic Fairing at the Bronx-Whitestone Bridge.” As described by NAB’s project manager, the project involved “several structural repairs and modifications to the bridge”. One portion of the overall project involved testing the bridge’s main cables to assess their condition after 60 years of exposure to salt and moisture. According to Project Manager, the TBTA “specifically contracted with NAB to open the main cables for inspection by TBTA engineers and remove samples of deteriorated wire from the main cables of the bridge” for laboratory analysis. Also according to the project manager, the TBTA would determine, based on what if learned after the testing, if future maintenance or repair of the cables was needed and would put it out for bid for a later separate contract.

The TBTA separately contracted with the Transportation Group to perform as a consultant on the project. Parsons subcontracted with defendant Engineers for “construction inspection and support services” “for the duration of the project,” as described in Attachment A of the contract. Plaintiff was specifically named in the contract as one of two inspectors on the project. The project manager for the Engineers testified that in general, a construction inspector such as plaintiff would be assigned to a particular construction operation, would have knowledge of the work to be done by virtue of having read the specifications and the contract drawings and shop drawings, and would be on-site to witness the work proceeding and ensure that the work was performed pursuant to the contract requirements.

Plaintiff testified during his injury examination before trial, that on January 7, 2003, he was assigned to inspect the work of NAB employees as they performed cable sampling. In order to perform inspection of the work, he had to climb up to the main cable and the platform underneath it, called the high-line platform, lie testified that to reach the workers, he would attach to the bridge “handrail” the two lanyards that were attached to his harness, and move along the main cable until he needed to unhook one of the lanyards, re-book it, and then unhook and re-hook the second one, and so on. The first time he ascended to the high-line platform, he did not know how to get down from the bridge cable and had complained to one of two workers about the need for a ladder.

On the day in question, when lie reached the high-line platform, he was attached by the two lanyards to the handrail, and he sat on the cable in order to disconnect himself from the handrail so that he could descend to the platform. After he sat down and disconnected both lanyards but before he could get safely down, he was caught by a gust of wind and knocked forward.

To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in his or her favor. Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial. A party opposing summary judgment must lay bare its proofs so that the matters raised in the pleadings are shown to be real and capable of being established upon trial. Summary judgment is appropriate when there is no genuine issue as to any material fact and the motorcycle disposition of the causes of action may be decided as a matter of law.

Labor Law § 200 codifies the common law duty imposed upon an owner or general contractor to maintain a safe construction site. It will hold an owner or general contractor liable if it is shown that the owner and/or general contractors exercised a certain degree of supervisory control over the worker’s activities. Where the alleged defect or dangerous condition arises from the contractor’s methods and the owner exercises no supervisory control over the operation, then no liability will attach to the owner under either the common law or under Labor Law § 200. It is well settled that Labor Law 200 will only be imposed on an engineer engaged to ensure compliance with construction plans and specifications where there is active malfeasance or liability is imposed by a clear contractual provision creating an obligation running to, and for the benefit of, the workers to ensure their safety.

To Be Cont…

There is a need for legal consultation if you are facing a claim for damages case, seek the legal assistance of a Bronx Estate Litigation Attorney and Bronx Probate Attorney at Stephen Bilkis and Associates.

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