Daniel Zemann Achieves Victory in Court of Appeals

February 21, 2014

London Fischer congratulates Daniel Zemann, Jr. on his victory in the Court of Appeals dismissing the Labor Law §240 claim against our clients in the matter of Fabrizi v.1095 Avenue of the Americas, LLC, et al. The decision is significant in limiting the reach of the statute to situations where the safety device that allegedly should have been provided is of the same type as those enumerated in the statute. The result is that an object simply falling and striking a worker does not in itself establish a violation of Labor Law §240.

Plaintiff, an electrician, brought suit against the owners and general contractor of a Midtown Manhattan construction project as a result of serious injuries he sustained when he was struck in the right hand by a large galvanized steel pipe. The pipe which injured Plaintiff was part of the building’s permanent telecommunications infrastructure, and Plaintiff had been assigned to reposition a utility box which was connected to the bottom of the pipe. Plaintiff dismantled the underlying structural support for the pipe, leaving it secured by only compression coupling at its top, and proceeded to drill into the concrete floor underneath the pipe, which caused the pipe to fall and strike his hand. The trial court granted summary judgment to Plaintiff on his cause of action under New York Labor Law §240(1), reasoning that the defendants failed to provide Plaintiff with adequate safety equipment to protect him from an elevation-related injury.

On appeal, Mr. Zemann argued that Plaintiff was not entitled to summary judgment because the pipe which struck him had been secured in place as part of the permanent infrastructure of the building, and because Plaintiff’s conduct in dismantling the underlying support for the pipe before drilling directly underneath it was the sole proximate cause of his injury. The Appellate Division, First Department adopted London Fischer’s argument and held that Plaintiff failed to demonstrate that his injury was caused by the defendants’ purported failure to provide him with an adequate statutory safety device. Accordingly, the Appellate Division reversed the trial court’s decision, and held that Plaintiff was not entitled to summary judgment against London Fischer’s clients. The Court of Appeals took that victory a step further and held that while the Appellate Division properly concluded that plaintiff had not established entitlement to summary judgment on liability, it erred in denying our clients summary judgment because they established as a matter of law that the conduit did not fall on plaintiff due to the absence or inadequacy of an enumerated safety device.

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