You are here: / / DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE...
, ,

DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE DAMAGES CLAIM STEMMING FROM A HIGH RISE FIRE, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE FOR PUNITIVE DAMAGES STEMMING FROM THE ACTS AND OMISSIONS OF ITS SAFETY ENGINEER, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT).

The First Department determined defendant general contractor was not entitled to dismissal of the punitive damages claim in connection with a high rise fire during demolition. 42 feet of the water standpipe had been removed, stairways were blocked and a no smoking policy was not enforced. One hundred firefighters were injured and two were killed fighting the blaze. The court found that the general contractor (Bovis) could be held liable for punitive damages based upon the acts and omissions of its safety manager, Melofchik. The court further found that the motion court properly considered plaintiffs’ new motion papers which were submitted before Bovis’s reply papers were due and which did not change the substance of the prior papers or prejudice Bovis:

Conduct justifying punitive damages “must manifest spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton'” … . Although issues of fact exist as to whether Bovis’s site safety manger, Jeff Melofchik, was present shortly after the subcontractor removed the 42-foot section of the pipe in November 2006, and whether Melofchik became aware at that point that the segment was part of the standpipe, it is undisputed that Melofchik did not test the standpipe system to ensure that it was operational during the 16-month period from March 2006 (when Bovis became the general contractor on the project) to August 2007 (when the fire occurred). …

An employer may be assessed punitive damages for an employee’s conduct “only where management has authorized, participated in, consented to or ratified the conduct giving rise to such damages, or deliberately retained the unfit servant,” such that it is complicit in that conduct … . Complicity is evident when “a superior officer in the course of employment orders, participates in, or ratifies outrageous conduct” … . Although Melofchik was not a “superior officer” and nothing suggests that Bovis management authorized or ratified Melofchik’s conduct, an issue of fact exists as to whether management was aware of Melofchik’s incompetence but still “deliberately retained the unfit servant … .”  Borst v Lower Manhattan Dev. Corp., 2018 NY Slip Op 04679, First Dept 6-26-18

​NEGLIGENCE (PUNITIVE DAMAGES, DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE DAMAGES CLAIM STEMMING FROM A HIGH RISE FIRE, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE FOR PUNITIVE DAMAGES STEMMING FROM THE ACTS AND OMISSIONS OF ITS SAFETY ENGINEER, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT))/DAMAGES (PUNITIVE DAMAGES, DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE DAMAGES CLAIM STEMMING FROM A HIGH RISE FIRE, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE FOR PUNITIVE DAMAGES STEMMING FROM THE ACTS AND OMISSIONS OF ITS SAFETY ENGINEER, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT))/PUNITIVE DAMAGES (DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE DAMAGES CLAIM STEMMING FROM A HIGH RISE FIRE, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE FOR PUNITIVE DAMAGES STEMMING FROM THE ACTS AND OMISSIONS OF ITS SAFETY ENGINEER, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT))/EMPLOYMENT LAW (NEGLIGENCE, PUNITIVE DAMAGES, DEFENDANT GENERAL CONTRACTOR NOT ENTITLED TO DISMISSAL OF THE PUNITIVE DAMAGES CLAIM STEMMING FROM A HIGH RISE FIRE, QUESTION OF FACT WHETHER GENERAL CONTRACTOR LIABLE FOR PUNITIVE DAMAGES STEMMING FROM THE ACTS AND OMISSIONS OF ITS SAFETY ENGINEER, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT))/CIVIL PROCEDURE (MOTION PAPERS, NEW MOTION PAPERS SUBMITTED BY PLAINTIFFS BEFORE DEFENDANT’S REPLY PAPERS WERE DUE PROPERLY CONSIDERED (FIRST DEPT))

You might also like
IN THIS NO-FAULT INSURANCE CASE, THE INSURER REQUESTED AN EXAMINATION UNDER OATH (EUO) WITHOUT AFFORDING THE MEDICAL PROVIDER SPECIFIC, OBJECTIVE JUSTIFICATION FOR THE REQUEST; SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE INSURER (FIRST DEPT).
DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT).
JURY CONFUSION, STEMMING FROM THE WORDING OF THE SPECIAL VERDICT SHEET, MANDATED A NEW TRIAL.
LESSOR OF THE VEHICLE INVOLVED IN THE REAR-END COLLISION WAS ENTITLED TO SUMMARY JUDGMENT PURSUANT TO THE GRAVES AMENDMENT; SUPREME COURT HAD THE AUTHORITY TO SEARCH THE RECORD AND GRANT SUMMARY JUDGMENT EVEN THOUGH NO MOTION HAD BEEN MADE (FIRST DEPT).
THERE IS A QUESTION OF FACT WHETHER PLAINTIFF’S WORK CONSTITUTED ‘ALTERING’ WITHIN THE MEANING OF LABOR LAW 241 (6); ACTION AGAINST OUT-OF-POSSESSION LANDLORD PROPERLY DISMISSED, NO SUPERVISORY CONTROL OF THE WORK (FIRST DEPT).
IN THIS ACTION STEMMING FROM WORTHLESS RESIDENTIAL MORTGAGE BACKED SECURITIES, THE COMPLAINT SUFFICIENTLY PLED THAT GROSS NEGLIGENCE PRECLUDED ENFORCEMENT OF THE ‘SOLE REMEDIES’ CLAUSES AND THE DEMANDS FOR PUNITIVE DAMAGES AND ATTORNEY’S FEES SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
TOW TRUCK DEFENDANTS FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT TOW TRUCK WAS NOT THE PROXIMATE CAUSE, TOW TRUCK DEFENDANTS MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).
COMMENTS ALLEGEDLY MADE BY A JUROR DURING DELIBERATIONS EXPRESSING ETHNIC BIAS REQUIRED A HEARING AND FINDINGS WHETHER DEFENDANT’S CONSTITUTIONAL RIGHTS, BOTH FEDERAL AND STATE, WERE VIOLATED (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

NEW YORK’S TAX SCHEME DOES NOT VIOLATE THE DORMANT COMMERCE CLAUSE BY... AN ADOPTIVE PARENT MAY BE EQUITABLY ESTOPPED FROM DENYING THAT HER FORMER SAME-SEX...