Cornell Grace Wins Summary Judgment For City In Case With Important Implications To Limiting Labor Law In Street Repairs, Prior Written Notice, And Notice Of Claim Requirements March 21, 2013

The law firm of Cornell Grace, P.C. recently won summary judgment for the City of New York in a case that has major implications in limiting Labor Law claims in street defect cases.  The decision also confirms that plaintiffs will not be permitted to effectively convert street defect claims to Labor Law claims where the latter is not pled in the initial Notice of Claim against the City.  The opinion was issued by Justice George Silver of the Supreme Court, New York County.

The City had hired one of its contractors to do emergency sewer repair work to a certain sewer catch basin. Plaintiff, one of the contractor’s employees, filed a Notice of Claim alleging that as a pedestrian, he tripped and fell on a street defect down the street from the repair area. He made no mention in the Notice of Claim that the accident was sustained during the course of his work, nor did he reference the New York State Labor Law. The accident report from the time of the accident, in fact, made clear that the plaintiff did not claim he was injured in the course of his work. His subsequent Summons & Complaint made no mention of the Labor Law. It merely repeated that he was a lawful pedestrian and tripped and fell on a street defect.

Plaintiff’s claims, of course, implicated the municipal Prior Written Notice Law. A thorough search of the Big Apple Map and City records showed no prior written notice regarding the alleged hazard that plaintiff set forth. However, later, in his Bill of Particulars, plaintiff attempted to assert a Labor Law violation, and made the first mention that he was injured in the course of his employment. Plaintiff argued that, as a result of the City’s status as an owner or general contractor of the project, the matter was a Labor Law claim and the Prior Written Notice Law did not apply.

After the close of discovery, Cornell Grace moved for summary judgment on behalf of the City, with the proof that there was no prior written notice of the alleged hazard. The plaintiff opposed, acknowledging that there was no prior written notice, but arguing that he also set forth a Labor Law theory of liability in that the trip and fall on the alleged street defect was in a “construction staging area” down the street from the repair work. He argued that that the Prior Written Notice Law should not apply to Labor Law cases. He cited cases regarding the construction and repair of roadways during which construction workers were injured and were allowed to plead the special provisions of the Labor Law against the municipality.

Upon Cornell Grace’s reply papers, as well as additional briefs requested by the Court, Justice Silver’s decision granted the City summary judgment dismissal. The plaintiff had not set forth or implied a Labor Law theory in his Notice of Claim and was therefore barred from pleading it later, even despite testifying at his 50-h hearing and his deposition that he was working at the time of the alleged trip and fall. Furthermore, Justice Silver’s decision made clear that the Prior Written Notice Law applies to Labor Law cases since it applies to “any claim” against the City.