Traub Lieberman Attorneys Succeed in Dismissing all Claims in Silvas, et al. v. Bridgeview Investors, LLC, et al.
November 17, 2009

On May 6, 2009, we reported that TLS&S attorneys Robert M. Leff, Robert S. Nobel and Sheryl Bruzzese obtained summary judgment, dismissing all but one of decedent plaintiff’s Labor Law claims in a wrongful death action. In short, the court in Silvas, et al. v. Bridgeview Investors, LLC, et al. dismissed plaintiff’s claims for (1) common law negligence and a Labor Law § 200 violation based on defendant’s lack of direction and control over plaintiff; (2) a Labor Law § 240(1) violation, finding that the removal plaintiff was the sole proximate cause of the accident; and (3) over twenty alleged Labor Law § 241(6) Industrial Code violations.

With respect to the more than twenty § 241(6) Industrial Code violations claimed by plaintiff, the court found only one such provision to be an applicable issue of fact for the jury. The applicable section, 12 NYCRR 23-1.22(c)(2), concerns the installation of safety railings on platforms standing more than seven feet above the ground. The clear language of the statute refers only to platforms used to transport vehicular traffic, which was not the purpose of the platforms used in the construction project at issue. Plaintiff moved to reargue and TLS&S attorneys cross-moved on the grounds that all claims should have been dismissed based upon the court's finding that plaintiff was the sole proximate cause of the accident. During oral argument, the court commented that this is a "text-book" example of sole proximate cause. Thereafter, the Court granted defendants' cross-motion to reargue dismissing all claims against defendants in a wrongful death action.

Copies of the Supreme Court, Kings County decision and order relating to this summary judgment motion and the motion to reargue are available for your reference. Any questions may be directed to Robert M. Leff.