Jon D. Lichtenstein recently obtained summary judgment dismissing a Labor Law case against our client CBRE, Inc. leaving several defendants to try the case.
This Labor Law case arose when a 40 lb. cable tray fell from a distance of 2-3’ onto the head of the 25 year old plaintiff. The plaintiff’s coworker was working with the cable tray on a ladder when the tray fell. The plaintiff was employed by a contractor USIS Electric, Inc. a subcontractor of Tishman Interiors, who was retained by the tenant AECOM Technology Corporation, to install audio visual wiring. Also in the case were the owners of the building and a company closely related to plaintiff’s employer.
Plaintiff underwent treatment for his head, neck, mid-back and low back and ultimately underwent lumbar disc de-compression surgery and lumbar fusion and he has received a recommendation for cervical fusion. He also alleged a traumatic brain injury and permanent disability.
We moved for summary judgment on the grounds that CBRE was not a statutory agent subject to the Labor Law and on the grounds that the tray that hit the plaintiff was not a falling object as that term is defined under the Labor Law.
Although the judge found that the cable tray was a falling object since it fell off of the ladder and did not drop from the hands of plaintiff’s coworker, he dismissed CBRE finding it was not a statutory agent under the Labor Law, and agreed there was no evidence the accident arose from CBRE’s negligence.
We argued that even though CBRE was the project manager and had many responsibilities including overseeing and administering the project, it had no power to control, supervise or direct plaintiff’s work. That CBRE’s sole employee associated with the job was only at the worksite weekly. Our witness expressly denied controlling, supervising or directing Mr. Tropea’s work and she expressly denied CBRE was responsible for site safety. We argued that CBRE could not have been responsible for safety without eyes, ears or a voice on site on a daily basis.
Plaintiff and certain codefendants argued that CBRE was a statutory agent since its contract required it to “oversee” the trades. We argued however, that mere “oversight” is insufficient since what is required is supervision and control.
We argued that the decision plaintiff was relying on Kenny v Fuller Co., 87 AD2d 183 (2d Dept 1982), was decided 23 years prior to the case we were primarily relying on Walls v Turner Constr. Co., 4 N.Y.3d 861, 798 N.Y.S.2d 351 (2005) and we argued that the Kenny case had not been cited by the Court of Appeals or the Appellate Division since the Walls case.