Kenneth Koerner v. 281 Broadway Holdings, LLC et al.

On August 7, 2011, plaintiff sustained catastrophic injuries as the result of falling from the 18th floor to a 15th floor setback of a construction site located at 57 Reade Street, New York, New York.  The building in question was owned by 281 Broadway Holding, LLC (281 Broadway). 281 Broadway hired Pavarini McGovern (“Pavarini”) to serve as the jobsite general contractor. In turn, Pavarini entered into a written trade contract with plaintiff’s employer, Genetech Building Systems, Inc. (“Genetech”) to perform all window installation at the jobsite and a written trade contract with S.J. Electric Inc., (S.J.) to perform all electrical work at the jobsite.

On the day of the accident, plaintiff’ and his partner, John Mooney, were working on a swing stage scaffold situated on the perimeter of the 15th floor of the premises installing heads and sills. As the two men were performing their work, a call came over the radio that a third man was needed to install a particular window panel on the 18th floor in a “tough inside corner”. Plaintiff and John Mooney responded to the call and proceeded to the 18th floor.

Located on the 18th floor was an area close to the leading edge of building that was cordoned off by nylon rope designated the Controlled Access Zone (The Zone”). It was Genetech’s policy that anyone working inside the Zone must be tied off. To that end, Genetech implemented an I-bolt Fall Protection System for all of its workers. The I-bolt System included a safety harness, retractable lanyard, and concrete anchorage devices. To use the I-Bolt System, Genetech workers were required to drill a hole into a concrete column in their work area.  A concrete anchor devise would then be inserted into the hole. The worker would then attach one end of the lanyard to the concrete anchor and the other end of the lanyard to his harness.

When Plaintiff and John Moony arrived on the 18th floor they found two of their coworkers having trouble installing a window panel. At this point in time, John Mooney entered the Zone to assist the Genetech coworkers while plaintiff stayed outside the Zone in an inventory area.

Approximately 10 minutes later, plaintiff heard one of the Genetech workers yell for help. Plaintiff then proceeded to run towards his fellow employees and entered the Zone. Plaintiff then managed to grab a suction cup attached to the window.  However, as plaintiff grabbed the suction cup, the weight of the window panel brought him over the edge of the building. There was also evidence in the record that plaintiff’s right leg came into contact with an electrical conduit installed by S.J. as he was lunging for the falling window panel.

After the accident, plaintiff filed a lawsuit against defendants alleging claims sounding in violation of Labor Law §§240(1), 241(6), 200 and common law negligence. 281 Broadway and Pavarini then filed respective third-party actions against Genetech for contractual indemnification and contribution based on the Pavarini/Genetech agreement.

At the completion of discovery, plaintiff filled a motion for summary judgment on the issue of Labor Law§240(1) liability. In his motion, plaintiff took the position that statute was violated based on defendant’s failure to provide readily accessible fall protection to Genetech workers. Specifically, plaintiff claimed that the I-bolt System employed by Genetech was inadequate because it placed the onerous on Genetech workers to implement the system. Plaintiff‘s counsel argued that plaintiff did not have time to drill a hole and insert an anchor when he heard cries for help from his coworkers. In addition, plaintiff’s counsel took the position that the statute was violated based on defendants failure to utilize a crane or other type of hoisting devise to install the window panels into place (plaintiff’s counsel withdraw all of his other causes of action against direct defendants).

In addition, 281 Broadway and Pavarini filed respective cross motions seeking indemnification against Genetech and S.J.  S.J. then filed a cross motion seeking dismissal of plaintiff’s complaint and all cross claims asserted against them.

The court denied plaintiff’s motion for summary judgment under Labor Law§240(1), based on a finding that issues of material fact existed as to whether plaintiff was the sole proximate cause of his accident and/or a recalcitrant worker. In addition, the court found that questions of fact exist as to whether plaintiff was supplied with appropriate, readily available safety devices. To wit; whether the I-bolt Anchor system provided to plaintiff and his coworkers was an appropriate tie-off system under the circumstances and whether plaintiff was faced with an emergency situation when he entered the Zone without tying off.

The Court then granted 281 Broadway and Pavarini contractual indemnification against Genetech and S.J after finding that the indemnification provisions in both contracts were triggered based on allegations in the pleadings that plaintiff’s accident arose out of both Genetech and S.J’s work.

Case Notes

Supreme Court of New York-County of New York
Index No.: 104688/11Judge: Joan M. Kenny
Date of Decision: February 10, 2014
Responsible Associate: Robert P. Meyerson
Client: Genetech Building Systems, Inc., (Scottsdale Insurance Company)
Opposing Counsel: Sacks & Sacks, LLP (Plaintiff); Barry, McTiernan & Moore, LLC (defendant Pavarini McGovern, LLC); Harris, King & Fodera (defendant 281 Broadway Holdings, LLC); Law Offices of Safranek Cohen & Krolian (defendant S.J. Electric, Inc.)