Brooke Modica (Associate-Long Island, NY) and Eugene Boulé (Partner-New York, NY | Long Island, NY) obtained dismissal of all claims against the firm’s client, an HVAC subcontractor, in the New York State Supreme Court, Bronx County, in a Labor Law action transferred to them just two weeks before the deadline to file a summary judgment motion.

The plaintiff, an employee of the carpentry subcontractor, alleged he was injured while walking across a concrete floor of a building under construction when he stepped onto an unsecured piece of plywood covering a floor opening and fell into the hole up to his armpits before a wooden beam stopped his fall. The carpentry subcontractor was responsible for initially installing plywood covers over all floor openings, but any subcontractor that subsequently removed a cover was responsible for replacing it. While there was no evidence as to which contractor removed the cover from the hole into which the plaintiff fell, the carpentry foreman testified that the HVAC subcontractor would have used the opening, and the plaintiff sought to hold Wilson Elser’s client liable for the accident. However, our client did not perform HVAC work at the site directly; it subcontracted the work to another HVAC company that was not named in the lawsuit, and the client had no presence at the jobsite. Our client's lack of presence on the jobsite was problematic in establishing the right to summary judgment because we had no direct proof that our client's subcontractor did not remove the plywood cover; prior counsel had not obtained evidence identifying the subcontractor's employees on site on the day of the accident. Brooke and Gene were forced to carry the burden of proof without direct evidence from our client’s subcontractors that they had not touched the plywood cover.

In Wilson Elser’s motion for dismissal, Brooke successfully argued that there was no evidence that the client removed the plywood cover or otherwise acted negligently. She further demonstrated that the carpentry foreman’s testimony regarding the use of the opening by the HVAC subcontractor was speculative and insufficient to raise a question of fact to defeat the motion. The court agreed, granting summary judgment and dismissing the third-party complaint against our client.