Gaetano Impoco v. Marjam Supply Co. Inc. et al.

Plaintiff alleged serious personal injuries after his ankle and foot were run over by a Marjam delivery truck at the Bay Plaza Mall loading zone while plaintiff and co-workers were in the process of moving carpentry materials offloaded from the truck minutes earlier.

In addition to negligence allegations against Marjam Supply Co. Inc. and the driver Earl Johnson, plaintiff alleged violations of Labor Law 241(6) and Labor Law 200 against our clients, Mall-1 Bay Plaza (premises owner), Tom Rectenwald Construction Inc. (general contractor for interior build out), and The Whiting Turner Contracting Company (construction manager for Mall construction). Plaintiff’s Labor Law 241(6) claim was alleged to be predicated upon violations of 12 NYCRR 23-1.33(b)(1)(iv)(b) and 12 NYCRR 23-1.29.

At the close of discovery, we (along with plaintiff) moved for Summary Judgment, arguing that our clients did not violate either Labor Law 241(6) or Labor Law 200. In support, we successfully argued that plaintiff, as a construction worker, was unable to maintain a cause of action under 12 NYCRR 23-1.29 which endeavors to protect pedestrians from adjacent construction site hazards. We also argued, successfully, that 12 NYCRR 23-1.33(b)(1)(iv)(b), which mandates certain protections for construction workers performing certain tasks in proximity to public roadways, is inapplicable to the facts of this case where there was no dispute that the alleged incident occurred on a private premises that was not exposed to the hazards presented by public vehicles. As a result, the Court dismissed plaintiff’s Labor Law 241(6) in its entirety.

Likewise, the Court dismissed the Labor Law 200 claim upon finding that Rectenwald and Whiting-Turner did not have the authority to supervise or control the performance of plaintiff’s work.

Anthony Buono drafted and argued the motions before Judge Martin.