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Contention that contractor created dangerous condition "far too speculative"; court dismisses direct claim and third-party complaint

Farley v. Gilbane Building Company, Index No. 18178/2008 (Sup.Ct. Kings Cty. 2013)

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In a 47-page decision, the Honorable Richard Velasquez dismissed claims against an electrical contractor in a personal injury action brought by a security guard.

The plaintiff worked for 21 months at the site of a construction project, where she made hourly security walk-throughs. "In making these security walk-throughs, plaintiff walked each time over the exact same path to … five locations and then back to her security guard booth, leaving and reentering the security guard booth the same way each time." Plaintiff claims she was injured at the end of her shift when she slipped and fell on rocks and gravel on her eighth round of walk-throughs that day at the site.

AGF&J's client filed a motion for summary judgment arguing that it did not cause or create the gravel condition that allegedly caused plaintiff's accident and did not have notice of any condition. In support, AGF&J submitted evidence to show that the gravel condition that plaintiff alleged to have caused her to fall was not even a dangerous condition to warrant an action in law.

The evidence showed, among other things, that the contractor's work on the project, which involved digging and refilling a hole, happened 75 feet away from the location of the accident and was completed a full year before the accident occurred. Another hole was 200 feet away from the location, and the work was completed five months prior. The security guard booth was moved after that work was completed.

Justice Velasquez, in granting the motion, agreed that the opposition was "unsubstantiated and far too speculative to raise an issue of fact." The Court also denied a separate motion against the contractor to compel production of its witness for a second time. Further depositions, to explore the thoroughness of a document search, in the hope of discovering evidence to raise an issue of fact, were unwarranted.

AGF&J partner Chris Christofides briefed and argued the motion, with the assistance of associate Graig Russo.