Expedited Dismissal “Hat Trick” for the MSW Litigation Team
The MSW Construction and Litigation team recently obtained pre-answer dismissal in two separate matters on behalf of its professional, and pre-discovery voluntary discontinuance in one matter where discovery had only just begun.
“…with Liberty and Justice for All”
New York County, NY – MSW filed a pre-answer motion for dismissal of a New York Labor Law claim arising out of an alleged fall on an equipment access ramp in connection with the renovation of Ms. Liberty.
Specifically, MSW represented an engineer in the design of an access ramp for use by certain vehicles used for repairs and masonry work at the Statute of Liberty. During construction work, a worker allegedly slipped and fell on the ramp. He subsequently sued the engineer (and other construction defendants) under New York Labor Law Sections 200, 240(1), 241(6). MSW filed a pre-answer motion to dismiss. The court held that the engineer’s role was limited to providing construction design, which cannot form the basis of liability under Labor Law Sections 240(1) and 241(6) unless that engineer controlled or directed plaintiff’s work. Additionally, the court held that Labor Law Section 200 could not impose liability against the engineer because the engineer did not control, supervise the work, nor had the authority to direct the construction procedures or safety measures.
“Take me out of the Ballgame…”
Hartford, CT – MSW filed a pre-answer motion on behalf of an engineer who performed limited services in connection with the design of a professional baseball stadium. The engineer was joined after the case was remanded post-trial and faced claims of indemnification, professional negligence, and negligent misrepresentation. The court held that the third-party plaintiff failed to allege facts sufficient to satisfy the required elements of a common law indemnification claim, thereby requiring dismissal of the common law indemnification claim. As for the professional negligence and negligent misrepresentation claims, the court held that the pleadings were devoid of factual allegations to support these claims and did not allege any pecuniary harm. The court noted that these claims are common law indemnification claims based on a breach of a duty owed to the underlying plaintiffs, not direct claims for a breach of duty owed to the third-party plaintiff.
“You Can’t See Me”
Ulster County, NY – MSW represented a structural engineer in litigation relating to a failing foundation at a residential property in New York. The structural engineer was sued for allegedly failing to properly inspect a foundation and provide a sufficient opinion about the structural integrity of the structure. The litigation team identified and obtained sworn statements from multiple non-party witnesses that corroborated the structural engineer’s version of events, and rebutted not merely plaintiff’s theory of the case, but also her recollection that she was there during the operative inspection. Under the heavy weight of an impending falsus in uno charge, Plaintiffs voluntarily discontinued the lawsuit.
