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Montfort, Healy, McGuire & Salley Wins Motion for Summary Judgment on Appeal

Michael A. Baranowicz, Donald S. Neumann, Jr., and Christopher T. Cafaro were successful in arguing the Supreme Court of Suffolk County’s decision to grant summary judgment in their favor should be affirmed in a personal injury manner.

The case was brought by an individual who was riding his motorcycle on Montauk Highway when he was allegedly struck in the chest by a wire that had come loose from a utility pole. The contact with the wire caused the motorcyclist to fall off his motorcycle and sustain injuries.  The individual brought an action against Verizon New York (represented by Montfort, Healy, McGuire & Salley) as they owned the subject utility pole along with additional defendants.  The additional defendants included DF Stone Contracting, Ltd., who was performing work in the location of the accident; Nelson & Pople, LLP, the engineering consultant on the subject project; and the County of Suffolk, the owner of the sidewalk and roadway in the area of the accident.

The Supreme Court of Suffolk County granted summary judgment in favor of Verizon New York along with the defendants Nelson & Pope, DF Stone Contracting and the County of Suffolk.

On appeal, the attorneys from Montfort, Healy, McGuire & Salley were successful in arguing Verizon New York was not liable for the motorcyclist’s injuries.  The Second Department found that the attorneys made a prima facie showing that they did not create the hazardous or defective condition.  Additionally, they found that Verizon New York had no notice of the existence of the downed wire.  Because the plaintiff was unsuccessful in raising an issue of fact, summary judgment was affirmed in favor of Verizon New York.

As for the other defendants, the Second Department noted that DF Stone was allegedly performing work at the time of the accident, and had been unloading asphalt from a dump truck whose bed, when fully extended, reached above the height of the wire which caused plaintiff’s injuries.  The court found that in their motion for summary judgment, DF Stone failed to eliminate any question of fact as to whether it created the dangerous condition.

For defendant N&P, the Court found that they made a prima facia showing that it did not have control over the work site or actual or constructive notice of the dangerous condition. The Court elaborated, stating that N&P’s right to generally supervise the work and stop the contractor’s work if they are aware of a safety violation, does not amount to the supervision and control of the work site that would hold them liable for the negligence of the contractor performing the day to day operations.  The plaintiff failed to raise an issue of fact regarding N&P’s control for the contractor.

Thus, the Second Department modified the Order of the Supreme Court of Suffolk County, denying the motion for summary judgment of DF Stone and affirming the decision to grant summary judgment to Verizon, N&P and the County of Suffolk.

To read a full copy of the decision click here.

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