New York Appellate Division Reverses Summary Judgment, Reinstating Cross-Claims in Labor Law 240(1) Trench Action

New York, N.Y. (November 1, 2019) - In Demetrio v. Clune Construction Company, decided October 29, 2019, New York Partners Nicholas P. Hurzeler and Sana Suhail obtained an appellate reversal of a summary judgment ruling, reinstating cross-claims against a subcontractor in a Labor Law action, greatly assisting our settlement and trial position. 

Our office represented the owner and general contractor at a construction site on Staten Island. The plaintiff fell into a trench that had been dug to install telecommunications equipment, and sustained serious personal injuries. The plaintiff alleged violations of Labor Law 240(1), 241(6), and 200.  The plaintiff then moved for summary judgment and, in view of New York’s liberal standards for Labor Law 240(1), his motion was granted. However, the lower court also granted the summary judgment motion of the subcontractor who had dug the trench, thereby dismissing all cross-claims against it, including those for contractual and common law indemnification. The lower court reasoned that the general contractor alone was responsible for overall site safety, as well as the condition of the trench and adjacent railings.  

On appeal, we argued that the evidence as to how the trench was constructed raised triable issues of fact as to the liability of the subcontractor under contractual and common-law indemnification principles. New York’s Appellate Division, First Department, agreed and modified the lower court’s decision by reinstating the cross-claims against the subcontractor. Prior to this decision, the subcontractor had naturally taken a no-pay position with respect to all settlement negotiations. Having the co-defendant back in the case greatly assists our position going forward with respect to both mediation and trial.

The key to this result was focusing the argument on the cross-claims against the subcontractor. Although there were good arguments supporting the reversal of summary judgment on the Labor Law 240(1) claim, and those issues were fully briefed, the venue strongly disfavors such a result. Accordingly, at oral argument we focused on the cross-claims, allowing us to obtain the best possible result for our client and reduce the overall exposure. In contrast, a strong focus on the plaintiff’s claim alone could have distracted the court from the cross-claims and resulted in a complete affirmance, thereby leaving the co-defendant out of the case. 

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