New York Construction Practice Team Obtains Summary Judgment and Dismissal of Labor Law Claims
October 01, 2024 —
Lewis Brisbois NewsroomNew York, N.Y. (August 23, 2024) – In Trujillo-Cruz v. City of New York, et al., New York Partner Inderjit Dhami, a member of New York Partner Meghan A. Cavalieri’s Construction Practice Team, recently obtained summary judgment and dismissal of the plaintiff's Labor Law §240(1), §241(6) and §200 claims dismissing the entire case against national developer and construction company clients.
The plaintiff alleged to have sustained injuries as the result of a construction site accident occurring on July 11, 2018, while in the scope of his employment as a laborer in connection with the construction/renovation of a residential apartment building in Brooklyn, New York. Specifically, the plaintiff alleged that he was injured when he was coming down from a ladder and fell on a 2”x 4”, causing him disabling injuries. The plaintiffs’ counsel articulated a $3 million settlement demand.
Labor Law §240(1) imposes absolute liability on a defendant where an injured worker engaged in the performance of covered construction work establishes that a safety device proved inadequate to shield him from elevation-related harm, and that the defendant’s failure to provide an adequate safety device proximately caused the injuries alleged. The plaintiff first testified that he stepped on the 2” x 4” after he came down off of the ladder, but his counsel then prompted him to recalibrate his testimony by asking whether the accident arose when he was coming down the ladder or after he had come down off of the ladder. The plaintiff changed his testimony, alleging that the accident arose as he was coming down the ladder and that he remained partially on the ladder when he stepped on the piece of formwork and fell. Inderjit argued that the plaintiff’s reframing of his deposition testimony was immaterial for purposes of the Labor Law § 240 (1) analysis. Irrespective of whether the plaintiff was on solid ground or had one foot on the ladder at the time of the occurrence, his Labor Law § 240 (1) claim was unavailing in that the accident did not arise as a result of the type of extraordinary elevation-related peril protected by Labor Law § 240 (1). Justice Maslow agreed and dismissed the plaintiff’s Labor Law § 240 (1) claims.
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Lewis Brisbois
Why a Challenge to Philadelphia’s Project Labor Agreement Would Be Successful
February 22, 2018 —
Wally Zimolong – Supplemental ConditionsThere is a common misconception that all Philadelphia Public Works projects must be performed pursuant to a project labor agreement with various members of the Building and Construction Trades Council. This common misconception is even shared by the current Mayoral administration, who I saw in a recent court filing testified under oath that “project labor agreements are required for all construction projects in Philadelphia with a value of at least five million dollars.” (As is discussed below this is flat out false.)
No one has yet to step forward to challenge Philadelphia’s project labor agreement scheme. However, if someone did, I think the challenge would be successful for three reasons. First, contrary to the Mayor’s representative’s statement, there is no requirement that all projects in excess of $5 million be subject to a project labor agreement. Second, Philadelphia’s project labor agreement excludes signatories to collective bargaining agreements with the United Steel Workers (USW) from participating, which violates public bid laws. Third, the exclusion of the USW, also gives rise to a challenge that federal labor law preempts the project labor agreement.
A. Background on the Philadelphia PLA.
Under a project labor agreement (PLA), a contractor wishing to perform work on a project agrees to be bound by the terms and conditions of employment established by the public owner and certain construction unions. Each PLA varies, but typically PLA’s will require a contractor’s employees to become members of a union – if they are already not members – in order to work on a project or will require a contractor to hire labor from a union hiring hall. PLA’s are controversial because they exclude non-union contractors from performing work on a project subject to a PLA, unless of course that contractor agrees to become “union” for purposes of that project. For reasons beyond this blog post, a merit shop contractor would be crazy to do that.
The “Philadelphia PLA” that Mayor Kenney believes is required for all public projects over $5 million was instituted by Mayor Nutter through a
2011 Executive Order(Executive Order No. 15-11, Public Works Project Labor Agreements).
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Being deposed—not just for dictators! Depositions in the construction lawsuit (Law & Order: Hard Hat files Part 5)
January 17, 2013 —
Melissa Dewey Brumback, Construction Law in North CarolinaMy husband always finds it amusing when I talk about going “to depose” somebody. He wants to know just exactly what sort of coup d’etat I am planning. Despite the awkward language, the deposition process is not supposed to feel like water boarding, although if you don’t know what to expect it can be more miserable than truly necessary.
Simply put, a deposition is a chance for the other side’s lawyer to make you answer a whole bunch of questions (some relevant, some seemingly irrelevant) under oath. That is, first you put your hand on the Bible and swear (or affirm) to tell the truth, the whole truth, and nothing but the truth. In reality, depositions serve a variety of purposes– they educate the lawyers about the facts of the case, they give a preview of how you would “present” to a jury (i.e., would a jury like and believe you?), and they can be used to position a case for certain later dispositive motions (that is, summary judgment– stay tuned for Part 8 of the series on that issue).
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Melissa Dewey BrumbackMs. Brumback can be contacted at
mbrumback@rl-law.com
Legal Disputes Soar as Poor Information Management Impacts the AEC Industry
July 03, 2022 —
Ideagen PlcManagers in Architecture, Engineering and Construction (AEC) are facing more disruptive disputes in 2022 compared to last year according to the latest independent research from regulatory compliance company Ideagen.
The survey of business leaders from AEC firms in the US and UK revealed that 78% of respondents experienced some kind of dispute in the business, compared to 63% in 2021, with information accessibility and visibility, caused largely by high staff turnover, the main root causes. With the challenges that the industry continues to face following COVID and increasing costs of materials, this is an added but unnecessary challenge facing the industry.
Stuart Rowe, Vice President of Collaboration Strategy at Ideagen, whose customers include the US Navy, Gensler, Arup and Ramboll, said: "The working world has continued to change in the last 12 months, which is reflected in the AEC industry's evolving priorities. The COVID-19 pandemic led to a huge shift to remote working which saw an increased need for effective collaboration tools, however, this year is appears that hybrid working is the new normal in the industry.
"Four-fifths of the people we spoke to said email is still king for project correspondence. This is a huge concern as most project scope changes reside in email inboxes. Failing to properly manage all information and records also prevents a Golden Thread, or a Single Source of Truth, across projects and businesses."
Ideagen undertook the independent survey to support developments to their Mail Manager software, used by 2,500 architecture, engineering and construction firms in 16 countries worldwide. It revealed a number of insights into how the industry is managing changing work patterns. Download the full research
here.
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Ninth Circuit Finds Policy’s Definition of “Policy Period” Fatal to Insurer’s “Related Claims” Argument
April 10, 2019 —
Jason M. Taylor - TLSS Insurance Law BlogProfessional liability policies often include some form of a “related claims” or “related acts” provision stating that if more than one claim results from a single wrongful act, or a series of related wrongful acts, such claims will be treated as a single claim and deemed first made during the policy period in which the earliest claim was made. These provisions can have significant implications on the applicable policy and policy limits, retroactive date issues, and whether such claims were first made and reported during a particular policy period. Recently, the Ninth Circuit issued a stern reminder of how the particular policy language can effect, and in this case thwart, the intended scope of the carrier’s “related claims” provision.
In Attorneys Ins. Mut. Risk Retention Grp., Inc. v. Liberty Surplus Ins. Corp., 2019 WL 643442 (9th Cir. Feb. 15, 2019), the Ninth Circuit construed a “related claims” provision included in two consecutive lawyers professional liability policies. During both the 2009–2010 and 2010–2011 insurance policy periods, attorney J. Wayne Allen (“Allen”) was insured through his employer by Liberty Surplus Insurance Corporation’s (“Liberty”) professional liability insurance. Third parties filed suit against Allen during the 2009–2010 policy period in a probate case, and a second, related civil suit during the 2010–2011 policy period.
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Jason M. Taylor, Traub LiebermanMr. Taylor may be contacted at
jtaylor@tlsslaw.com
Arizona Supreme Court Confirms a Prevailing Homeowner Can Recover Fees on Implied Warranty Claims
November 21, 2017 —
Rick Erickson - Snell & Wilmer Real Estate Litigation BlogOriginally published by CDJ on August 30, 2017
On August 9th, in Sirrah Enterprises, L.L.C. v. Wunderlich, the Arizona Supreme Court settled the question about recovery of attorneys’ fees after prevailing on implied warranty claims against a residential contractor. The simple answer is, yes, a homeowner who prevails on the merits can recover the fees they spent to prove that shoddy construction breached the implied warranty of workmanship and habitability. Why? Because, as Justice Timmer articulated, “[t]he implied warranty is a contract term.” Although implied, the warranty is legally part of the written agreement in which “a residential builder warrants that its work is performed in a workmanlike manner and that the structure is habitable.”
In other words, a claim based on the implied warranty not only arises out of the contract, the claim is actually based on a contract term. Since, in A.R.S. § 12-341.01, Arizona law provides for prevailing parties to recover their fees on claims “arising out of contract” and because the implied warranty is now viewed by the courts as a contract term, homeowners can recover their fees after successfully proving breach of the implied warranty.
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Rick Erickson, Snell & WilmerMr Erickson may be contacted at
rerickson@swlaw.com
Update Regarding McMillin Albany LLC v. Super Ct.
April 28, 2016 —
Richard H. Glucksman and David A. Napper – Chapman Glucksman Dean Roeb & Barger In FocusThe construction industry continues to await the California Supreme Court's highly anticipated decision regarding McMillin Albany LLC v. Super Ct. 2015 F069370 (Cal.App.5 Dist.). The Supreme Court will attempt to resolve the conflict presented by the Fourth Appellate District Court's holding in Liberty Mut. Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98 and rejection of the same by the Fifth Appellate District Court in McMillin Albany. The issue is whether the Right to Repair Act (SB800) is the exclusive remedy for all defect claims arising out of new residential construction sold on or after January 1, 2013. CGDRB has been closely monitoring the progress of the case and understands that the real parties in interest have submitted their opening brief on the merits. The Court granted Petitioners a further and final extension to file the answer brief on the merits. The answer deadline is Monday April 25, 2016. Stay tuned.
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Richard H. Glucksman, Chapman Glucksman Dean Roeb & Barger and
David A. Napper, Chapman Glucksman Dean Roeb & Barger
Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com
Mr. Napper may be contacted at dnapper@cgdrblaw.com
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Meet the Hipster Real Estate Developers Building for Millennials
October 02, 2015 —
Ben Steverman – BloombergJohn Chaffetz is showing off an apartment building that his development firm, Timberlane Partners, just bought for $7.2 million. He admits it doesn’t look so hot. “This has been treated like a prison camp,” he says of the 32-unit building in Los Angeles’s Echo Park neighborhood. Steel bars stick out of a cinder-block fence, threatening to impale someone. The front door is an ugly metal gate.
But an organic supermarket opened around the corner in November, and a Blue Bottle Coffee just arrived down the block. There’s a farmers market nearby each Friday, and five minutes up Sunset Boulevard is the Silver Lake neighborhood, a nest of hipster cafes and places to buy rare cheese and handmade clothes. Timberlane plans to tear down the building’s security fencing, put terracotta back on the roof, and repair windows that date to its pre-1930 construction. “The goal,” Chaffetz says, “is for this to look like a Moroccan boutique hotel.”
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Ben Steverman, Bloomberg
