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In Kosta v. WDF, Inc., the Supreme Court of Kings County considered liability for a construction site fatality at the Owl’s Head Water Treatment Plant in Brooklyn. The plaintiff, acting as administrator of the estates of Gennaro and Donna Montello, sought damages for injuries and wrongful death caused by the collapse of a conveyor system. The court analyzed claims under Labor Law § 200, common law negligence, and other related causes of action.
Background Facts
The accident occurred during a construction project at the Owl’s Head Water Treatment Plant, owned by the City of New York. WDF, Inc. was the general contractor and was required to install temporary conveyors to move waste during construction. The conveyors, purchased from Serpentix Conveyor Corporation, were designed to be bolted to the floor. At the request of a City supervisor, the conveyors were modified by adding wheels, making them mobile.
WDF contacted J. Blanco Associates, Inc. to fabricate and provide caster wheels. The modified conveyors were installed in July 2008. On August 27, 2008, Serpentix notified WDF that the warranty on the conveyors was void due to the modifications and warned that the conveyors needed additional supports. WDF did not install the supports.
On January 9, 2009, City worker Gennaro Montello was instructed by his supervisor to move the conveyors. During the move, one of the conveyors collapsed, killing Mr. Montello and injuring others.
Question Before the Court
The court was asked to decide whether WDF and other contractors were liable for Montello’s death under Labor Law § 200 and common law negligence. It also considered whether other parties, including Serpentix and J. Blanco, could be held liable under theories of strict products liability, negligence, or breach of warranty. Additionally, the court reviewed motions for summary judgment on various Labor Law claims and cross claims for indemnification and contribution.
Court’s Decision
The court granted summary judgment in favor of the plaintiff against WDF on the issues of liability under Labor Law § 200 and common law negligence. The court denied WDF’s motion for summary judgment on these claims. However, the court granted summary judgment in favor of WDF, Pro Safety Services (PSS), Shaw, Bidwell, and C & G on claims brought under Labor Law §§ 240(1), 241(6), and 27-a. Claims under these statutes were dismissed.
The court also granted summary judgment in favor of Serpentix and J. Blanco, dismissing the strict products liability, negligence, and breach of warranty claims against them. The court found that the conveyors were altered by WDF and that there was no defect at the time of sale. Serpentix had provided warnings about the dangers of the modifications.
Summary judgment was denied to PSS on the remaining claims under Labor Law § 200 and common law negligence. The court found there were questions of fact as to PSS’s obligations and knowledge of the dangerous condition. The court also denied WDF’s motion for indemnification but allowed potential contribution claims to proceed.
Discussion
The court’s decision relied on established standards for liability under Labor Law § 200. WDF, as the contractor responsible for purchasing, modifying, and installing the conveyors, had notice of the structural risk. It was undisputed that WDF chose not to install additional supports after being notified by Serpentix that the conveyors were unstable. The court found that WDF created or had notice of the dangerous condition, making it liable under § 200 and common law negligence.
PSS, WDF’s safety contractor, was responsible for inspecting the site and reporting safety hazards. Although PSS claimed the conveyors were outside the scope of its responsibilities, the court found questions of fact as to whether the conveyors were within its inspection duties, especially given the safety role it agreed to fulfill for WDF.
Shaw, Bidwell, and C & G were construction managers, engineers, and safety inspectors hired by Shaw. The court found that their roles were supervisory and did not include control over the work or workers who were moving the conveyors. Accordingly, they were not liable under § 200 or common law negligence.
The court dismissed claims under Labor Law § 240(1) because Montello was not engaged in construction work or an enumerated activity at the time of the accident. He was a City employee moving equipment in anticipation of a concrete pour, not actively working on construction or alteration. Similarly, the court dismissed Labor Law § 241(6) claims, holding that Montello was not engaged in construction, excavation, or demolition work.
Regarding the product liability claims, the court found that the conveyors were not defective when sold and that WDF’s alterations caused the hazard. Serpentix had warned WDF about the instability and offered to provide supports, which WDF declined. As a result, the claims for design defect and failure to warn were dismissed. J. Blanco, which only provided caster wheels based on WDF’s limited specifications, was also dismissed from the case.
The court also ruled on indemnification and contribution. Because WDF was found liable under § 200 and common law negligence, it could not seek indemnification. However, since PSS’s liability was still unresolved, contribution between parties remained an open question.
Conclusion
This case demonstrates how responsibility under Labor Law § 200 and common law negligence may rest on control over a dangerous condition rather than supervision of work. Contractors and safety providers must ensure equipment is safe for use, even if the injured party is not their employee. Modifying manufacturer-designed equipment without proper engineering support can create risks and lead to liability.
If you or a loved one has been injured in a construction-related accident, contact an experienced New York personal injury lawyer at Stephen Bilkis & Associates. We can help you understand your rights and pursue the compensation you deserve.