Baum v. Ciminelli-Cowper Co., Inc.

12 Citing cases

  1. Liberty Mutual Fire Ins. Co. v. Travelers Indemnity Co.

    03-CV-159S (W.D.N.Y. Sep. 26, 2004)

    The Appellate Division held that defendants failed to create an issue of fact sufficient to support a recalcitrant worker defense to section 240(1), and that "liability under section 241-a has been established as a matter of law." Baum v. Ciminelli-Cowper Co, Inc. Amthor Steel, Inc., 755 N.Y.S.2d 138, 139-40 (N.Y.App. Div. 2002). However, the Appellate Division also found that "there is a triable issue of fact whether Ciminelli, as the construction manager for the project, was acting as the agent of the owner pursuant to the terms of the construction manager agreement and thus is subject to liability under the Labor Law."Id.

  2. Aladdin Const. Co. v. John Hancock Life Ins. Co.

    2004 CA 90 (Miss. 2005)   Cited 34 times
    Finding that the explicit references in the contract to the third parties demonstrated that they were parties "whose performance was contemplated"

    R A Constr. Corp. v. Queens Boulevard Extended Care Facility Corp., 290 A.D.2d 548, 549, 736 N.Y.S.2d 423 (N.Y.App.Div. 2002). See also Baum v. Ciminelli-Cowper Co., 300 A.D.2d 1028, 1029, 755 N.Y.S.2d 138, 139-40 (N.Y.App.Div. 2002) (the existence of a distinction between "general contractor" and "construction manager" is a question of fact for trial on the merits). While "[t]here is no single, widely accepted definition of construction management," Sagamore Group, Inc. v. Comm'r of Transp., 29 Conn.App. 292, 614 A.2d 1255, 1259 (1992), the Plaintiffs cite the distinction drawn between a general contractor and a construction manager by the Rhode Island Supreme Court in Brognov.

  3. Puckett v. Gordon

    2008 CA 1159 (Miss. Ct. App. 2009)   Cited 5 times
    Providing that the trial court may determine a reasonable amount of attorney's fees in favor of a party entitled to the recovery of punitive damages

    R A Constr. Corp. v. Queens Boulevard Extended Care Facility Corp., 290 A.D.2d 548, 549, 736 N.Y.S.2d 423 (N.Y.App.Div. 2002). See also Baum v. Ciminelli-Cowper Co., 300 A.D.2d 1028, 1029, 755 N.Y.S.2d 138, 139-40 (N.Y.App.Div. 2002) (the existence of a distinction between "general contractor" and "construction manager" is a question of fact for trial on the merits). While "there is no single, widely accepted definition of construction management," Sagamore Group, Inc. v. Comm'r of Transp., 29 Conn.App. 292, 614 A.2d 1255, 1259 (1992), the Plaintiffs cite the distinction drawn between a general contractor and a construction manager by the Rhode Island Supreme Court in Brogno v. W J Associates, Ltd., 698 A.2d 191, 194 (R.I. 1997).

  4. Smith v. Picone

    63 A.D.3d 1716 (N.Y. App. Div. 2009)   Cited 5 times

    We affirm. We conclude that plaintiffs met their initial burden on the motion by establishing that "the absence of . . . a safety device was the proximate cause of [plaintiffs] injuries" ( Felker v Corning Inc., 90 NY2d 219, 224; see Baum v Ciminelli-Cowper Co., 300 AD2d 1028, 1029), and that "defendant failed to raise a triable issue of fact whether the conduct of plaintiff was the sole proximate cause of his injuries" ( Ewing v Brunner Intl., Inc., 60 AD3d 1323, 1323; see Ganger v Anthony CimatolACP Partnership, 53 AD3d 1051, 1052-1053; cf.Tronolone v Praxair, Inc., 22 AD3d 1031, 1033). In opposition to the motion, defendant contended that plaintiff should have used an outrigger system to raise the bricks to the level at which the masons were working, rather than carry them up the ladder by hand.

  5. Zender v. Madison-Oneida

    46 A.D.3d 1361 (N.Y. App. Div. 2007)   Cited 3 times

    Supreme Court erred in denying plaintiffs' motion for partial summary judgment on the Labor Law ยง 240 (1) cause of action, and we therefore modify the order accordingly. Plaintiffs met their burden by establishing that plaintiff was injured by a fall from an elevated work site and that the absence of a safety device was the proximate cause of his injuries ( see Felker v Corning Inc., 90 NY2d 219, 224; Baum v Ciminelli-Cowper Co., 300 AD2d 1028, 1029). Here, the ladder that was made available to plaintiff to ascend the beam was removed, leaving plaintiff no choice but to attempt an alternate method of descending from the beam ( cf. Montgomery v Federal Express Corp., 4 NY3d 805).

  6. Trippi v. Main-Huron, LLC

    28 A.D.3d 1069 (N.Y. App. Div. 2006)   Cited 18 times

    Under the facts of this case, plaintiff has no valid section 240 (1) cause of action under the theory that he was struck by a falling object. The metal prop was at the same height as plaintiff and was not an object that "fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute" ( Narducci v. Manhasset Bay Assoc., 96 NY2d 259, 268). Nor is plaintiff entitled to judgment as a matter of law under the "falling worker" theory, under which plaintiff must establish that there was a violation of Labor Law ยง 240 (1) and that such violation was a proximate cause of his injuries ( see generally Felker v. Corning Inc., 90 NY2d 219, 224; Zimmer v. Chemung County Performing Arts, 65 NY2d 513, 524, rearg denied 65 NY2d 1054; Baum v. Ciminelli-Cowper Co., 300 AD2d 1028, 1029). Rather, the record establishes that there is a triable issue of fact whether the stepladder, which did not "`collapse, slip or otherwise fail to perform its [intended] function of supporting the worker,'" provided proper protection within the meaning of section 240 (1) ( Musselman v. Gaetano Constr. Corp., 277 AD2d 691, 692, quoting Briggs v. Halterman, 267 AD2d 753, 754-755; see Grogan v. Norlite Corp., 282 AD2d 781, 782-783; Donovan v. CNY Consol. Contrs., 278 AD2d 881; Weber v. 1111 Park Ave. Realty Corp., 253 AD2d 376; Gange v. Tilles Inv. Co., 220 AD2d 556). There is likewise a triable issue of fact whether the conduct of plaintiff was the sole proximate cause of his injuries ( cf. Petit v. Board of Educ. of W. Genesee School Dist., 307 AD2d 749; see generally Weininger v. Hagedorn Co., 91 NY2d 958, 960, rearg denied 92 NY2d 875; Manning v. Johnson Bldg. Co., 303 AD2d 929, appeal dismissed 100 NY2d 556).

  7. Aton v. Syracuse University

    24 A.D.3d 1315 (N.Y. App. Div. 2005)   Cited 3 times

    Supreme Court erred in denying plaintiff's motion for partial summary judgment on liability on the Labor Law ยง 240 (1) cause of action, and we therefore modify the order accordingly. We agree with plaintiff that he established as a matter of law that he was injured as the result of a fall from an elevated work site and that defendants failed to provide a sufficient safety device ( see Felker v. Corning Inc., 90 NY2d 219, 224-225; Baum v. Ciminelli-Cowper Co., 300 AD2d 1028, 1029). The nondelegable duty under Labor Law ยง 240 (1) is met by furnishing, placing and operating safety devices that provide proper protection ( see Haystrand v. County of Ontario, 207 AD2d 978).

  8. Tronolone v. Praxair, Inc.

    22 A.D.3d 1031 (N.Y. App. Div. 2005)   Cited 14 times

    We nevertheless agree with defendant that the court erred in granting plaintiff's motion. "To establish entitlement to judgment on liability under Labor Law ยง 240 (1), `[a] worker injured by a fall from an elevated worksite must . . . prove that the absence of or defect in a safety device was [a] proximate cause of his or her injuries'" ( Baum v. Ciminelli-Cowper Co., 300 AD2d 1028, 1029, quoting Felker v. Coming Inc., 90 NY2d 219, 224). Even assuming, arguendo, that plaintiff established that a defect in the scaffold or "the absence of any other safety device was a proximate cause of the accident" ( Loveless v. American Ref-fuel Co. of Niagara, 299 AD2d 819, 820; see generally Plass v. Solotoff, 283 AD2d 474; Grogan v. Norlite Corp., 282 AD2d 781, 782), we conclude that defendant raised triable issues of fact "whether the safety device provided [to plaintiff] afforded proper protection" ( Kumar v. Stahlunt Assoc., 3 AD3d 330, 330; see Weber v. 1111 Park Ave. Realty Corp., 253 AD2d 376, 377-378) and whether plaintiff's actions in disregarding safety instructions and stepping on a guardrail were the "`sole proximate cause' of the accident" ( Blake v. Neighborhood Hous. Servs. of N.Y. City, 1 NY3d 280, 290; see Montgomery v. Federal Express Corp., 4 NY3d 805, 806; Cahill v. Triborough Bridge Tunnel Auth., 4 NY3d 35, 39-40; Makaj v. Metropolitan Transp. Auth., 18 AD3d 6

  9. Ewing v. ADF Construction Corp.

    16 A.D.3d 1085 (N.Y. App. Div. 2005)   Cited 27 times

    We conclude that the court properly granted plaintiffs' motion. Plaintiffs established as a matter of law that plaintiff was injured by a fall from an elevated work site and "'that the absence of . . . a safety device was [a] proximate cause of his . . . injuries'" ( Baum v. Ciminelli-Cowper Co., 300 AD2d 1028, 1029, quoting Felker v. Corning Inc., 90 NY2d 219, 224). Contrary to defendant's contention, the nondelegable duty under section 240 (1) "'is not met merely by providing safety instructions or by making other safety devices available, but by furnishing, placing and operating such devices so as to give [plaintiff] proper protection'" ( Haystrand v. County of Ontario, 207 AD2d 978, 978, quoting Gordon v. Eastern Ry. Supply, 181 AD2d 990, 991, affd 82 NY2d 555; see Waggoner v. Lancet Arch, Inc., 291 AD2d 831).

  10. Mennerich v. Esposito

    4 A.D.3d 399 (N.Y. App. Div. 2004)   Cited 104 times

    Dicesare failed to sustain its burden of establishing that it did not supervise or control the excavation and earth-moving work which caused the plaintiff's injury ( see Crespo v. Triad, Inc., 294 A.D.2d 145, 146; Everitt v. Nozkowski, 285 A.D.2d 442, 443; Kim v. Herbert Constr. Co., 275 A.D.2d 709, 713). Nor did Dicesare sustain its burden of establishing that it was not a statutory agent of the owner of the construction site for purposes of Labor Law ยง 241(6) ( see Russin v. Louis N. Picciano Son, 54 N.Y.2d 311, 318; Everitt v. Nozkowski, supra; see also Baum v. Ciminelli-Cowper Co., 300 A.D.2d 1028, 1030). Dicesare also failed to sustain its burden of establishing, as a matter of law, that the accident was due to the methods of work of the plaintiff's employer rather than the condition Dicesare created at the job site ( see Seaman v. A.B. Chance Co., 197 A.D.2d 612, 613), or that the danger which caused the accident, in this case, a rock embedded in a pile of material, was readily observable ( see Garcia v. Silver Oak USA, 298 A.D.2d 555, 555-556; cf. Gavigan v. Bunkoff Gen. Contrs., 247 A.D.2d 750, 751).