Russo, Keane & Toner, LLP Scores Victory Before Appellate Division In Labor Law Case

Russo, Keane & Toner partner Alan S. Russo successfully argued before the Second Department Appellate Division on behalf of a general contractor for affirmation of an order denying plaintiff’s motion for summary judgment in a Labor Law § 240 case, Luis Herrnsdorf v. Bernard Janowitz Construction Corp. et al.  In the same argument, Mr. Russo defeated the motion of the owners of the construction site, which sought to obtain contractual and common-law indemnification from the general contractor, and also the motion to dismiss brought by the insurer for the plaintiff’s employer, a subcontractor at the site.  Plaintiff alleged that he fell from a sloping garage roof at the site while attaching metal trim because the general contractor, Janowitz, had not supplied him with adequate safety equipment. 

Mr. Russo, who was assisted on the brief by RKT partner  Thomas F. Keane, of counsel Francesca A. Sabbatino and associate H. Devrim Elci, argued to the Court that plaintiff had been given a ladder by his employer which was adequate for the work and that plaintiff chose to leave the safety of the ladder to climb on the roof, an activity not necessary to complete the job.  Plaintiff had been instructed not to ascend to the roof, but to attach the trim from the safety of the ladder.  He had done this in a light snowstorm, despite not being specifically directed to work that day.  Mr. Russo also contended successfully that in view of the questions of fact presented, such as whether plaintiff was the sole proximate cause of his injuries or had been told to work in bad weather, the Court should affirm the denial of plaintiff’s motion.

Moreover, the insurer for plaintiff’s employer had brought a motion to dismiss the indemnification claims against it, alleging that it was given late notice and that Janowitz was not an additional insured on the policy issued to the subcontractor.  Mr. Russo, however, noted that the affidavit submitted by the insurer failed to conclusively show that Janowitz was not a named insured, and the panel agreed. 

The Court similarly dismissed the insurer’s argument as to notice as improperly founded.  RKT’s work on the case exemplifies the firm’s commitment to reducing the Labor Law exposure of contractors to plaintiffs who are the sole proximate cause of their own injuries, as well as the firm’s ability to prevent insurers from escaping indemnification based on boilerplate arguments.