• Skip to main content
  • Skip to primary sidebar
  • Skip to footer
(914) 220-1086

Law Offices of Thomas L. Gallivan, PLLC

Just another WordPress site

  • Home
  • About
    • Attorney Profiles
      • Daniel F. Gallivan
      • Thomas L. Gallivan
      • James C. Freeman
      • Andrew J. Gilbride
    • Testimonials
  • Practice Areas
    • Personal Injury
      • Car Accident Lawyers
      • Pedestrian Accident Lawyers
      • Slip & Fall Lawyers
      • Truck Accident Lawyers
      • Wrongful Death Lawyers
      • Motorcycle Accident Lawyers
      • Uber Accident Lawyers
    • Nursing Home Abuse
      • Bedsores and Pressure Ulcers
      • Bruises and Cuts
      • Elopement
      • Falls & Broken Bones
      • Group Home Abuse
      • Infections
      • Malnutrition
      • Physical Abuse
    • Criminal Defense
    • Medical Malpractice
  • Blog
  • Resources
    • Videos
    • Notable Cases
  • Contact Us
  • Home
  • About
    • Attorney Profiles
      • Daniel F. Gallivan
      • Thomas L. Gallivan
      • James C. Freeman
      • Andrew J. Gilbride
    • Testimonials
  • Practice Areas
    • Personal Injury
      • Car Accident Lawyers
      • Pedestrian Accident Lawyers
      • Slip & Fall Lawyers
      • Truck Accident Lawyers
      • Wrongful Death Lawyers
      • Motorcycle Accident Lawyers
      • Uber Accident Lawyers
    • Nursing Home Abuse
      • Bedsores and Pressure Ulcers
      • Bruises and Cuts
      • Elopement
      • Falls & Broken Bones
      • Group Home Abuse
      • Infections
      • Malnutrition
      • Physical Abuse
    • Criminal Defense
    • Medical Malpractice
  • Blog
  • Resources
    • Videos
    • Notable Cases
  • Contact Us
Call
Contact
Blog
Home  /  Personal Injury Law  /  New York Plaintiff Construction Worker’s Case Dismissed for Alleging the Wrong Labor Law Claims

New York Plaintiff Construction Worker’s Case Dismissed for Alleging the Wrong Labor Law Claims

by Law Offices of Thomas L. Gallivan, PLLC 01 Aug2015

The New York Supreme Court, Appellate Division, First Department dismissed an entire personal injury case because the construction worker plaintiff failed to state any claims in his appeal under which he could be entitled to any relief.

The plaintiff was working on a construction site owned by the defendant. The plaintiff stepped on a flatbed trailer that was provided by the contractor in charge of the construction project (not the defendant). The flatbed trailer had a hole on it that the plaintiff did not see. The plaintiff’s leg sunk through the hole, all of the way up to his hip, and he sustained injuries. The plaintiff filed a personal injury case, alleging a variety of Labor Law and Industrial Code claims.

The plaintiff filed suit against the owners of the property and not the contractor in charge of the construction project that had employed him. The defendant was therefore able to show it was prima facie entitled to summary judgment and therefore dismissal of the entire complaint.

In a Labor Law 200 claim, the plaintiff must prove two elements: (1) that the defendant either supervised or controlled the plaintiff’s work and (2) that the defendant had notice of the defect that caused the accident. Labor Law 200 is the common law negligence statute for construction work.

Here, the defendant was a company that owned land and hired a contractor to build property on the land. The defendant was not in charge of coordinating workers, supervising their work, or paying any real attention to the daily goings on of the project, including whether there were holes on flatbed trailers. Those duties were all the responsibility of the contractor. Thus, the plaintiff’s Labor Law 200 claim was dismissed.

The plaintiff also filed a claim under Labor Law 240 (1), which is known as the Scaffold Act. Labor Law 240 requires that contractors provide safety protection and equipment to construction workers who work at elevated heights on construction or renovation projects. Here, however, the plaintiff was not at an elevated height. A flatbed trailer is not the kind of elevated height contemplated by the statute. In addition, the plaintiff did not allege what kind of safety equipment could have been provided on the flatbed trailer to prevent this accident.

The plaintiff also alleged an Industrial Code 23-1.7 (b) (1) (i) violation, which covers hazardous openings at construction sites. However, this statute is meant to protect individuals from completely falling through holes. Thus, the entire body must fit through the opening. The hole in this case was only large enough for a leg. Because the plaintiff alleged the Industrial Code 23.17 violation, he also alleged a Labor Law 241 (6) violation, which requires safety equipment. Due to the dimensions of the hole, this claim was also foreclosed.

Finally, the plaintiff alleged in the appeal a violation of Industrial Code 23-9.2 (a), which covers power-operated equipment at construction sites. The flatbed trailer is not power-operated equipment. This claim is also without merit.

The plaintiff also alleged a multitude of other claims in his original complaint, but because he failed to raise them upon appeal, the First Department refused to consider them. When deciding a case on appeal, an appellate court is only required to consider the issues that were raised in the appellate briefs.

If you or a loved one has been injured in an accident at a construction site, you need the expert personal injury lawyers at the Law Offices of Thomas L. Gallivan, PLLC to review your case. Contact the Law Offices of Thomas L. Gallivan, PLLC today to discuss your potential claims.

Brown v. New York-Presbyterian HealthCare Sys., Inc., 123 AD3d 612 (1st Dept., Dec. 23, 2014).

Posted in: Personal Injury Law, Construction Accidents

Primary Sidebar

Get In Touch

Practice Areas

Personal Injury

  • Wrongful Death
  • Motor Vehicle Accidents
  • Trucking Accidents
  • Pedestrian Accidents
  • Construction Accidents
  • Scaffolding Accidents
  • Slip, Trip & Falls (Premises Liability)
  • Negligent Supervision at a School or Day Care
  • Sidewalk Falls
  • Elevator Accidents
  • Train and Subway Accidents

Nursing Home Neglect & Abuse

  • Bedsores (Pressure Ulcers)
  • Falls & Fractures
  • Malnutrition and Dehydration
  • Physical and Sexual Abuse
  • Wandering & Elopement
  • Unexplained Bruises and Cuts
  • Infection
  • Choking Incidents
  • Medication Errors
  • Group Homes
  • Assisted Living Facilities

Criminal/DWI Defense

  • DWI (Driving While Intoxicated)
  • Criminal Defense
  • Traffic Violations
  • DMV Refusal Hearings
  • Sex Crimes
  • Shoplifting & Larceny
  • Assault & Vehicular Assault
  • Drug Possession
  • Drug Sales
  • Weapons Charges
  • Domestic Violence
  • How is a DWI Defined in New York?
  • Is the Driver’s License Confiscated Immediately Upon a DWI Arrest?

Medical Malpractice

  • Failure to Diagnose Cancer
  • Birth Injuries (Gynecological, Obstetrical)
  • Medication Errors
  • Surgical Errors
  • Gastric Bypass Surgery Errors
  • Emergency Room Errors
  • Failure to Diagnose Heart Attack or Stroke
  • Cerebral Palsy
  • Erbs Palsy Birth Injury

Trusts + Estates

  • Wills & Trusts
  • Divorce, Child Support, Custody Issues
  • Elder Law
  • Estate Planning
  • Guardianships
  • Medicaid-Planning
  • Power of Attorney / Health Care Proxy
  • Probate and Estate Administration
  • Surrogate Court Litigation
  • Real Estate
  • Business Formation
  • Wills
  • Will Contests

View All Practice Areas

View All Blogs

CLIENT TESTIMONIALS

" Last year I was injured in an accident, and for the first time, needed the advice of an attorney regarding how to proceed. I was referred to Thomas Gallivan through a family member who is a lawyer in Massachusetts. I am beyond pleased with how Thomas handled my case. He was knowledgeable, professional, and although the case was not as straightforward as some, he used every resource to ensure a positive outcome. Thomas communicated with me regularly and I felt completely informed and confident in his ability. He expertly negotiated a fair settlement that I was very happy with. The entire experience was extremely positive, during a stressful time for me. Thank you Thomas. "

Melanie

" Attorney Thomas Gallivan is a wonderful attorney!! I particularly liked his professionalism, consistency, always kept us updated on the case, and available upon request. He worked extremely hard and was persistent on getting the best settlement in a timely matter. I truly appreciated his prompt responsiveness to emails and phone calls. The office staff was very pleasant and made sure to get messages to him asap. Glad we chose this law firm, would highly recommend and in the event that we ever need an attorney again, Gallivan & Gallivan would be my primary choice. "

Katherine R.

" I was a passenger on a motorcycle and ended up falling off the back of the bike due to the driver acting like an idiot. I fell off at a high rate of speed and was very banged up. Fractured wrist and road rash down my back and elbows. I am lucky I didnt die. Not knowing what to do I contacted Thomas and he could not have been anymore helpful!! He went out of his way to meet with me. He actually came to my house for the initial consultation. I know nothing about law or what my options even were. He took me through everything step by step. "

Colin W.

View All Testimonials

245 Main St Suite 450 White Plains, NY 10601

Phone:
(914) 220-1086

Fax:
(516) 394-4229

555 5th Ave 14th Floor
New York, NY 10017

Toll Free:
(855) 228-7369

(By Appointment Only)

1370 RXR Plaza
Uniondale, NY 11556

Phone:
(914) 594-6820

Fax:
(516) 394-4229

12 1st St
Riverhead, NY 11901

Phone:
(914) 825-5855

Fax:
(516) 394-4229

Footer

  • Home
  • About
  • Practice Areas
  • Blog
  • Resources
  • Contact Us

ATTORNEY ADVERTISING

Copyright © 2022, Law Offices of Thomas L. Gallivan, PLLC