Jeffery Samel & Partners

Construction/Labor Law

JEFFREY SAMEL & PARTNERS regularly defends its clients in cases involving construction workers and other laborers who claim to have been injured at the workplace. We are well versed in the statutory requirements of such claims and their defenses, and are very successful in legally shifting responsibility from our clients onto other parties, either by contract or by common law, as well as obtaining indemnification and defense takeovers, and reimbursement of defense costs.

Trial Successes

Harris v. Arnell Construction Corp. [Supreme Kings] Minimal Damages Plaintiff, a rigger, was working on or near a Transit Authority transformer substation, removing pipes and conduits. Plaintiff was under the mistaken impression that the transformer substation was de-energized, and was in the process of removing a 25 foot-long pipe, when the pipe came into contact with a live electrical wire causing an explosion. The pipe crashed into plaintiff’s shoulder and a live current ran through him. Plaintiff claimed to have sustained an exacerbation of osteoarthritis in his wrists, which required him to undergo fusion surgery in both wrists that left him severely disabled. Plaintiff, on a motion for summary judgment, was granted liability pursuant to Labor Law §241(6), under Industrial Code Regulation NYCRR §23-1.13(3)(4), which provides that an employer has the affirmative duty to ascertain the existence and location of all electric circuits. At the damages trial, plaintiff sought $2,000,000 from the jury. We successfully argued, and offered substantial proof, that plaintiff's injuries were largely pre-existing Accordingly, the jury rendered a damages verdict of only $20,000. The trial court set aside such verdict and ordered a new trial on the damages issues, unless both sides agreed to increase the award to $150,000. No such agreement was reached by the parties, and a second trial ensued. At the second damages trial, a different jury returned a verdict in the amount of $25,000. Plaintiff ultimately accepted that sum, when his motion to set aside the second verdict was denied. (Robert Spevack)

Appellate Decisions

Sanchez v. Barnes & Noble 59 A.D.3d 699, 875 N.Y.S.2d 499 (2d Dept. 2009) Plaintiff was electrocuted and sustained serious injury, when he came into contact with a loose wire while performing construction work in a retail store. Our client was one of two lighting service contractors (the other having defaulted). We moved for summary judgment on behalf of our client on two grounds: that the lighting service contractor owed no duty to plaintiff; and that plaintiff failed to establish any notice of the condition or that it was our client that had created the condition complained of. The lower court granted our motion for summary judgment on behalf of our client, and the Appellate Division affirmed. (Judah Z. Cohen)

Porazzo v. City of New York 39 A.D.3d 731, 834 N.Y.S.2d 298 (2d Dept. 2007) Plaintiff, a construction worker, brought an action based upon Labor Law §241(6), which required him to show that the area on which he fell was a “passageway, walkway, or other elevated working surface.” We moved to dismiss the complaint on the ground that the area where he was injured did not fit that description, as it was an open yard that plaintiff decided to walk through despite the presence of snow and ice. The motion court granted our summary judgment motion, and the Appellate Division affirmed. (David Samel)

Summary Judgment & Dispositive Motions

Vicente v. Silverstein Properties [Supreme Bronx] Plaintiff was a laborer who severed two of his fingers with a circular saw while engaged in the alteration of a building. Plaintiff sued the building owner, pursuant to the provisions of Labor Law §241(6) and §200. Although the plaintiff was actually employed by a contractor, we argued that he was also a "special/borrowed employee" of our client, the building owner. We presented proof that plaintiff took all of his directions from and was supervised by our client, which also provided him with training and the circular saw he was using at the time. Because plaintiff did not sustain a “grave injury,” we argued that he was barred from suing the building owner, as a result of the exclusivity provision of the Workers’ Compensation Law. After a Framed Issue Hearing on the issue of "special employee" status, the court granted our motion for summary judgment, holding that plaintiff was a "special employee" of the building owner. (Judah Z. Cohen)

Grell v. City of New York, et al. [Supreme Bronx] Plaintiff, a construction worker, was assigned by his non-party employer to apply hot tar to street columns. The snout of the kettle used to pour the hot tar onto the pavement became stuck with congealed tar. Using a welding torch, plaintiff attempted to flay off the congealed tar from the nozzle/snout of the kettle. This process caused a blow-back of hot tar onto plaintiff's face and arms, causing third-degree burns. Plaintiff alleged violations of Labor Law §240(1), §241(6), §200, and common-law negligence. We moved for summary judgment on behalf of our clients, arguing that plaintiff was not working at a height, which precluded recovery under Labor Law §240(1); that the Industrial Code sections allegedly violated, under the purview of Labor Law §241(6), had no application to the facts; and that Labor Law §200 and common-law negligence were also inapplicable, since our clients did not supervise, direct, or control the injury-producing activity, nor did they provide plaintiff’s tools. The court granted our motion in all respects, and dismissed the complaint against our clients. (Judah Z.Cohen)