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Plaintiff Failed to Raise a Triable Issue of Fact in Wrongful Death Action: Second Department Reverses Lower Court’s Decision

March 28, 2019 • Posted By • Risk Managment

ANTHONY M. PERRELLI, ETC. v. ARMANDOE EVANGELISTA N.Y.L.J – March 15, 2019 This is an action to recover damages for wrongful death. Armandoe Evangelista appealed from an order of the Supreme Court of Queens County denying motion for summary judgment in Evangelista’s favor. The Second Department reversed the Lower Court’s decision and granted Evangelista’s motion for summary judgement dismissing the complaint.  Read More

“COME ON EILEEN” LIABILITY UNDER LABOR LAW SECTIONS 240(1) AND 241(6) CANNOT ATTACH TO A TENANT THAT DOES NOT CONTRACT FOR OR DIRECT WORK.

March 27, 2019 • Posted By • Construction Claims

Rizzo v. 165 Eileen Way, LLC  169 A.D.3d 943, 94 N.Y.S.3d 157 (2nd Dept. 2019)  This action was brought by plaintiff for injuries he sustained in a fall from a scaffold while hanging sheetrock to soundproof a wall between a law office and a sports facility, 165 Eileen Way Sports, LLC (“Sports”). After construction of Sports’ facility was completed, the neighboring law office complained to the building owner, 165 Eileen Way LLC (“Owner”), that noise from the facility was disruptive to its business. The Owner rehired the contractor that built Sports’ facility, Rosner Construction LLC (“Rosner”), to soundproof the wall, which was done on Sport’s side. Rosner subcontracted the work to plaintiff’s employer, and it was during this work plaintiff was injured.    

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Prior Written Notice for Staircases Upheld Hinton v. Village of Pulaski

March 21, 2019 • Posted By • Risk Managment

A local man fell down a rustic set of steps on his way to his favorite fly-fishing hole, but is the city liable? “‘[N]o civil action shall be maintained’ against defendant Village of Pulaski for personal injuries sustained as a result of a defect in ‘any street, highway, bridge, culvert, sidewalk, or crosswalk’ unless prior written notice of the alleged defect is provided to the Village.” Village of Pulaski Code §122-14. This is a common example of a prior written notice law, intended to protect city and village governments. Here, Hinton fell down what he alleged was a negligently maintained staircase, but he failed to plead or prove the Village received prior written notice of a defect in the staircase. The Village moved for summary judgement and it was granted. The issue is whether the Village of Pulaski’s prior written notice law encompasses this staircase? Though the statute does not expressly mention stairways, these prior written notice statutes have been expanded to include them based on the “functional equivalence” test from Woodson v City of New York, 93 N.Y.2d 936, 937 (1999). Essentially, if the stairway functionally fulfills the same purpose as a roadway or sidewalk, then it will fall under the prior written notice statute. Despite the dissent’s impassioned call for stricter interpretation of the plain meaning of the statute, the majority sided with precedence and stare decisis, citing the lack of an “extraordinary and compelling justification” that would be required to overturn precedents. The standalone set of stairs, despite being unconnected to a sidewalk, were covered by the statute. Read More