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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))

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PLAINTIFFS WERE ENTITLED TO SUMMARY JUDGMENT ON THEIR MINIMUM WAGE, OVERTIME PAY, SPREAD-OF-HOURS PAY AND WAGE THEFT PREVENTION ACT CAUSES OF ACTION, INCLUDING LIQUIDATED DAMAGES, PREJUDGMENT INTEREST AND ATTORNEYS’ FEES (FIRST DEPT).
PRENUPTIAL AGREEMENT INTERPRETED TO WAIVE TEMPORARY MAINTENANCE DESPITE ABSENCE OF THE PRECISE TERM.
INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED TO INDEMNIFY THE INSURERS WHICH SETTLED THE CLAIM FOR BOTH DAMAGES AND EXCESS ATTORNEYS’ FEES, PLAINTIFF HIRED A MORE EXPENSIVE LAW FIRM ($795/HR) RATHER THAN USE THE FIRM HIRED BY THE WORKERS’ COMPENSATION CARRIER ($150/HR).
PLAINTIFF FELL FROM AN UNSECURED LADDER WHEN STRUCK BY FALLING OBJECTS; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).
DEFENDANT DID NOT PRESENT SUFFICIENT EVIDENCE TO WARRANT SUMMARY JUDGMENT IN THIS DRAM SHOP ACT CASE; POINTING TO GAPS IN PLAINTIFF’S PROOF WILL NOT MEET THE BURDEN OF PROOF AT THE SUMMARY JUDGMENT STAGE (FIRST DEPT). ​
WHEN A JUDGE MAKES A WRONG RULING WHICH CANNOT BE APPEALED BECAUSE IT WAS NOT PROMPTED BY A MOTION, A MOTION TO SET ASIDE THE ORDER PURSUANT TO CPLR 5015 IS AN APPROPRIATE REMEDY; THE DENIAL OF THE MOTION TO SET ASIDE CAN BE APPEALED, AS WAS SUCCESSFULLY DONE HERE (FIRST DEPT).
COUNSEL’S CONDUCT WAS NOT FRIVILOUS OR DESIGNED TO DELAY; COUNSEL WAS NOT GIVEN THE OPPORTUNITY TO BE HEARD BEFORE SANCTIONED; THE JUDGE DID NOT INDICATE WHY THE AMOUNT OF THE SANCTION WAS APPROPRIATE, $100 SANCTION REVERSED (FIRST DEPT). ​
IT WAS (HARMLESS) ERROR TO ALLOW THE ARRESTING OFFICER TO TESTIFY THAT DEFENDANT WAS DEPICTED IN THE VIDEOTAPE WHICH WAS BEING PLAYED (FIRST DEPT).

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