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Wunderlich v. Turner Construction Company, Safway Services v. LVI Environmental, v. Irwin Seating Company NYLJ, 2/24/17, P. 28

March 20, 2017 • Posted By Joseph A. French • Construction Claims, Insurance Coverage

Defendants appealed from a decision that had denied their motion for summary judgment.  The First Department affirmed the Trial Court’s decision denying the motion on Labor Law §241(6) and §200 grounds.  It did modify the lower Court’s decision, however, and grant the motion addressing the claim for contractual indemnification.

            Plaintiff apparently fell as a result of stepping on a loose bolt.  “It cannot be determined as a matter of law on this record whether the bolt on which plaintiff Patrick Wuderlich was injured was left over from the removal of seats by LVI or was newly installed as part of the work plaintiff was performing installing the platform”.  Plaintiff’s co-worker testified that, in viewing photographs of the accident site, he could not tell whether the protruding bolts were old or newly installed as part of the platform installation.

            A determination could also not be made as to which contractor removed seats in an area where plaintiff fell.

            “To the extent plaintiff’s injury may have resulted from the means and methods of the work, given that plaintiff gained access to the area via the risers with the newly installed bolts instead of aisle stairways, an issue of fact exists as to the extent to which Irwin controlled plaintiff’s work”.

            This decision underscores the importance of establishing who exercised control and supervision of the precise worksite where a worker was injured in a case presenting Labor Law issues.