James F. O'Brien

White Plains, New York partners Eric Cheng and Jim O’Brien were successful in obtaining a Decision affirming summary judgment on behalf of an engineering firm that oversaw the reconstruction of Pelham Parkway in the Bronx.  In the underlying case, the plaintiff electrician who was retained by New York City stepped into an open excavation hole at the job site and claimed permanent disability, with damages in excess of $2 million. The trial court granted summary judgment based on Eric and Jim’s arguments that the plaintiff was not entitled to Labor Law protection and no work was performed by the client in the area where the plaintiff fell. On appeal to the Appellate Division-Second Department, the plaintiff argued that the accident did occur at the client’s jobsite, and he was entitled to Labor Law protection, including § 240(1). As § 240(1) is a strict liability statute, if the Appellate Division reversed the trial court’s decision, the client would be exposed to liability without the ability to assert contributory negligence as a defense. Eric and Jim argued, inter alia, that neither the plaintiff nor his employer had been retained to perform any work pertaining to the reconstruction project, and thus the plaintiff was not within the class of persons subject to the protections of the Labor Law. In a unanimous decision, the Appellate Division affirmed the trial court’s decision.