- Maria Natoli v. Imperial Yacht Club, Supreme Court, Dutchess County. Arbitration – Justice William Sherwood, retired. In a case that had been pending in Supreme Court, Dutchess County, the parties agreed to submit the matter to arbitration. Justice William Sherwood presided over the arbitration on December 15, 2011 and issued a decision on December 26, 2011. Plaintiff claimed that while working as a waitress at the Imperial Yacht Club and while employed by Mamma Rosa’s Cucina Corp., which operated a restaurant concession at the yacht club, she was badly burned when a carafe of iced coffee shattered onto her foot. Plaintiff claimed that the day before the incident, she had been instructed by one of the yacht club’s employees on how to properly make iced coffee for the yacht club’s patrons and members. The yacht club claimed that its employees never did such a thing and that at all times, plaintiff was an employee of Mamma Rosa’s and therefore she was under Mamma Rosa’s supervision and direction. The yacht club also claimed that her injuries were minimal and that she had returned to work shortly after the incident and continued working until the arbitration without interruption. Plaintiff’s demand had been $275,000.00. Following the arbitration, the arbitrator found that while the yacht club employee had issued instructions to plaintiff, they did not believe this was “an absolute liability case”. He noted plaintiff should have known that poring freshly made very hot coffee into a chilled glass container could result in the container failing. She could have allowed the coffee to cool or she could have put it into another carafe that was not chilled.” He found that plaintiff had above average intelligence and with her experience as a server, she should have known not to do such a thing. As a result he found her 1/3 responsible for the incident. He also agreed that her injuries, although painful perhaps at the time of the incident, had healed with “only minor residual damage”. He valued her injuries at $32,500.00 but she was charged with 1/3 of liability for the incident. Thus, the total sum awarded was $21,667.00, inclusive of all liens. Accordingly, the award was less than 10% of the plaintiff’s $250,000.00 demand. For further information, please contact Joseph A. French at Jfrench@frenchcasey.com.
- Selca v. DMBR Inc. d/b/a Little Gym, Supreme Court, Dutchess County. In a decision dated December 22, 2011, Justice Sproat dismissed all claims against our insured, defendant Little Gym. We had moved for summary judgment seeking a dismissal of all Labor Law claims pleaded against our insured. Plaintiff was an employee of co-defendant/landlord. He claimed that he heard an alarm sounding from inside our client’s gym premises. Upon investigation, he claimed that an alarm was malfunctioning. He then went into our client’s utility closet and without our client’s permission took a ladder from the closet and placed it beneath the alarm. He then proceeded to climb the ladder and while standing near the top rung, he lost his balance, fell and severely fractured his calcaneus. He subsequently sued and presented claims under Labor Law §§240, 241(6) and 200. Judge Sproat dismissed all claims. She found that plaintiff had taken the ladder without permission, he had entered the premises without permission, that the service he was providing was routine maintenance, that it did not qualify as any construction, demolition or excavation under §241(6) and that our client never had actual or constructive notice of any defect. As a result, plaintiff had failed to make out of prima facie case against our insured. Accordingly, all statutory and common law claims were dismissed against Little Gym. For further information, please contact Joseph A. French at Jfrench@frenchcasey.com
- Violete Fargo v. The City of New York et.al., New York Supreme Court, Kings County, Hon. Richard Velasquez, J.S.C. Result: Summary Judgment. In an action seeking damages for personal injury, allegedly casued by a trip and fall on a sidewalk at the corner of 88th Street and 4th Avenue in Brooklyn, New York, we succesfully obtained summary judgment dismsising the action against our client, a demolition contractor. We were able to prove that our client did not perform any work at the subject accident location even though a NYC DOT permit placed the client near the site. We were able to convince the Court that a "permit pull" was not sufficient to keep the client as a viable defendant absent some proof that it created or had notice of an allegedly dangerous condition. For more information, please contact Douglas Rosenzweig at Drosenzweig@frenchcasey.com.
- Mauva Smith v. 270 Broadway Associates, LLC, et al., New York Supreme Court, Kings County, Hon. Francois A. Rivera, J.S.C. Result: Summary Judgment. In an action seeking damages for personal injury, allegedly caused by a trip and fall on a sidewalk in front of a construction site, we successfully obtained summary judgment dismissing the action against our client, a sidewalk bridge company. At plaintiff’s deposition, we successfully elicited testimony from plaintiff that she had no evidence that the alleged sidewalk defect was created by the subject sidewalk bridge or that the subject sidewalk bridge created a condition which impaired her ability to observe the condition of the sidewalk, and she was not aware of any complaints regarding the subject sidewalk bridge. For more information, please contact Barry Meade at bmeade@frenchcasey.com.
- American International Ins. Co. of Calif. a/s/o James Herbert, et al. v. Hannmann Machinery System, Inc., et al., New York Supreme Court, New York County, Hon. Donna M. Mills, J.S.C. Result: Stipulation of Discontinuance. In an action seeking subrogated damages for property loss to a co-op apartment, allegedly caused by a water leak from a pressure tank designed, manufactured and distributed by the Firm’s client manufacturer, we successfully obtained a stipulation of discontinuance, prior to depositions, after filing a motion to dismiss for spoliation of the key piece of evidence. At the preliminary conference, the court ordered plaintiff to produce the subject water tank for our inspection. When plaintiff was unable to produce the tank, we immediate filed our motion to dismiss. Plaintiff advised that they would not oppose the motion, and discontinued the action with prejudice. For more information, please contact Barry Meade at bmeade@frenchcasey.com.
- Conning v. Brooklyn Triathlon Club and John Stewart, Supreme Court, Kings County, Hon. Arthur M. Schack J.S.C. Result: Summary Judgment for clients. Facts: Plaintiff was participating in a triathlon training bicycle ride on a public roadway when she encountered a roadway defect, causing her to fall off her bicycle and get hit by a co-defendant’s car. The ride plaintiff was participating in was organized by Brooklyn Triathlon Club (“BTC”) and led by John Stewart (“Stewart”), a coach retained by the BTC. Decision: Judge Schack agreed with our arguments that plaintiff, an experienced cyclist, assumed the risk of injury in encountering a roadway defect which was open and obvious while riding her bicycle and that defendants were not negligent in taking her on the roadway where he accident occurred. In addition, Judge Schack agreed that plaintiff signed a valid and enforceable waiver of liability, waiving her rights to bring an action against BTC and Stewart and that G.O.L. §5-326 did not void the waiver as being against public policy. For more information, please contact Jenna E. Elkind at jelkind@frenchcasey.com.
- Conlan v. CCA Contruction Internat’l et al., Supreme Court, New York County, Hon. Doris Ling-Cohan, J.S.C. Result: Summary judgment for client. Labor Law 240 and 241 claims were alleged in an action seeking damages for personal injuries sustained by the plaintiff in a fall down a hoistway. Neither the installation of the hoist nor its maintenance or repair were found to be a cause of the plaintiff’s alleged accident or injuries. The Court found that the Firm had established an unrefuted prima facie entitlement to judgment and Regional Scaffolding & Hoisting Co., Inc. was dismissed from the case. For more information, please contact Susan A. Romano at sromano@frenchcasey.com
- Georgiou v. Colgate Scaffolding Corp., and Colgate Scaffolding & Equipment Corp., Appellate Division, First Department. Result: Lower Court’s decision denying client’s motion for summary judgment unanimously overturned. Facts: Plaintiff alleged that Colgate’s sidewalk bridge was negligently constructed so as to divert rain water into the vestibule of a restaurant the sidewalk bridge abutted. Plaintiff alleged to have sustained injuries when he was caused to slip and fall on the accumulated rain water inside the vestibule of the restaurant. Our office argued that Colgate was not contractually obligated to construct a waterproof sidewalk bridge. It was also argued that the Building Code provisions cited by plaintiff’s expert were inapplicable to the present matter and that Colgate never received any notice as to any alleged defects of the sidewalk bridge. Additionally, it was argued that plaintiff’s allegations that the sidewalk bridge was negligently constructed and diverted rain water into the restaurant were based purely on surmise and conjecture, insufficient to defeat a motion for summary judgment. The Appellate Division found the arguments made on behalf of Colgate persuasive and overturned the lower Court’s denial of Colgate’s motion for summary judgment, directing that all claims and counter-claims against Colgate be dismissed in its entirety. For more information, please contact Jenna Elkind at jelkind@frenchcasey.com.
- Mary Glynn v. Kimball International, et. al., New York Supreme Court, New York County, Hon. Barbara R. Kapnick, J.S.C. Result: Summary judgment for client. In an action seeking damages for fraudulent inducement and unjust enrichment brought by former members of a regional furniture dealership against the remaining members of the dealership and an international furniture manufacture, the Firm successfully obtained summary judgment dismissing plaintiffs’ complaint against its client, Kimball International. For more information, please contact Barry Meade at bmeade@frenchcasey.com.
- Joseph Torchia v. Hudson Valley Sports Dome, Dutchess County, Supreme Court. Favorable arbitration decision received and issued by Justice William E. Sherwood (Ret.). Result: Arbitration decision for our client, Hudson Valley Sports Dome and per the decision, “the plaintiff is not entitled to any award.” Facts: Plaintiff, an experienced and skilled athlete who had formerly played college baseball, was playing flag football in the Hudson Valley Sports Dome. The game in question was the second game of plaintiff’s second season in this indoor league. Hudson Valley had opened approximately one year earlier and was designed by its owner. There is an artificial turf field and beyond the end zones there was an asphalt runway on the inside perimeter. During the game, plaintiff went to receive a pass in the end zone. When the pass was thrown to him, he attempted a “lay out” to reach the ball while keeping his feet in bounds. He was uncertain if he was hit by defendant but when he fell out of bounds to the ground he ended up falling onto the asphalt runway. He was knocked unconscious and was airlifted to a hospital where he remained for approximately one week in intensive care. He was induced into a coma for several days and eventually was released. He required months of rehabilitation. Plaintiff has returned to work and is currently living in North Carolina. Currently, plaintiff complains of headaches, ear pain, and hearing loss, loss of smell and a loss of cognitive functions. In the months after the incident, he suffered panic attacks and vertigo spells. We contested this matter by attacking the expert proffered by plaintiff’s counsel and arguing that plaintiff had assumed the risk of playing flag football in our client’s facility. The judge ruled the alleged design failure was not clear and certainly was not proven. Plaintiff’s claim that there was negligent supervision by the referees was also placed under attack and the judge found that this also was not proven as no rules or standards were cited that governed the two referees assigned to the game. The arbitrator ruled that the case “must fall within the assumption of risk doctrine under well established New York Law,” and cited Brown v. The City of New York, 69 A.D.3d 893 (2d Dept. 2010). Plaintiff’s expert opined that the asphalt runway was an alleged defect but the arbitrator accepted our arguments that if it was a defect, it was an open and obvious condition, and plaintiff was certainly well aware of this track based upon his play at the stadium, as well as his play that evening because he walked across it to get to the field before the game began. “The facts are clear that the field of play was well defined and the physical limits of the playing area were or should have been well known to plaintiff. They were certainly not hidden or latent. Plaintiff was not a novice at the game, not unfamiliar with the facility or new to the league. In short, the defendant was not negligent in any way that contributed to the plaintiff’s injury in this case. In light of the lack of any demonstrative negligence and the plaintiff’s assumption of the risk, the plaintiff is not entitled to any award.” For more information, please contact Joseph French at jfrench@frenchcasey.com.
- Leticia Valle et.al. v. Brandon Colon and Kenneth Colon, The City of New York, Tower Painting Co. Inc., Long Island Cesspool Co., Inc., New York Supreme Court, Queens County, Justice Kevin Kerrigan. Result: Summary Judgment awarded to client, complaint dismissed. Facts: On March 28, 2006, shortly after 3:00 a.m., plaintiff-decedent was killed while standing on the South Outer Roadway of the Queensboro Bridge. On the night in question, the bridge was closed by a contractor represented by our firm. The closure was approved by the City of New York. At some point during the night, plaintiff-decedent and a friend made their way onto the bridge to take photographs of the New York City skyline. Tragically, a drunk driver drove through the lane closure striking and killing plaintiff-decedent. The driver, an off-duty police officer, was arrested and charged with vehicular manslaughter. At the close of discovery, our firm moved for summary judgment arguing that the lane closure was not the proximate cause of the accident and that the defendants had no duty to the plaintiff who snuck onto the bridge. Justice Kerrigan agreed and dismissed the complaint holding that the road closure was designed to protect vehicular traffic from a closed work area and also to protect workers on the bridge from vehicular traffic and were not pedestrian safety measures. Therefore, plaintiff was not within the intended or anticipated class of individuals for whose benefit the road closure procedures were put in place. He held that the unilateral and random decision to stroll onto the South Outer Roadway to take photographs because they saw that the roadway was closed to traffic, notwithstanding that their access to that area was clearly prohibited, did not expand defendants’ duty of care to include them. For more information, please contact Douglas Rosenzweig at drosenzweig@frenchcasey.com.
- Construction Cooperation Corp. v. Staging Concepts Inc., S.D.N.Y., Judge Alvin K. Hellerstein. Result: Summary Judgment awarded to client, defendant Staging Concepts Inc. dismissing the action in its entirety. Facts: Plaintiff, a subcontractor, hired by Staging Concepts Inc. to install handrails at the Citifield Stadium in Flushing, New York claimed that it was entitled to recover $102,231.12 in lost profits. Plaintiff and Staging Concepts Inc. entered into a purchase order that clearly stated that the parties were bound by the AIA contract between the general contractor and Staging Concepts Inc. Staging Concepts Inc. terminated plaintiff for failing to properly perform its work. The AIA contract provided that plaintiff could be terminated for any reason whatsoever and clearly stated that plaintiff was not entitled to lost profits upon the termination of the contract. Plaintiff was only entitled to recover monies for work actually performed upon termination, which was the basis of plaintiff’s first, second and third causes of action. Nevertheless, plaintiff sued Staging Concepts Inc. for $17,997.12 (first, second and third causes of action) and $102,231.12 (third, fourth and fifth causes of action). The Court found that plaintiff was not entitled to lost profits pursuant to the unambiguous terms and conditions of the contract. Based upon the denial of plaintiff’s claim for lost profits; the court dismissed the entirety of the action because it no longer retained subject matter jurisdiction as plaintiff’s remaining claims totaled $17,997.12, which was below the Court’s subject matter jurisdictional limits. Accordingly, the motion for summary judgment was granted. For more information, please contact Rosalyn Maldonado at rmaldonado@frenchcasey.com.
- Sinchi v. Emigrant Savings Bank, New York Supreme Court, Bronx County, Justice Geoffrey D. Wright. Result: Summary Judgment awarded to client, defendant Colgate Scaffolding & Equipment Corp. for defense and indemnity. Facts: Plaintiff claimed that he fell from a ladder leaning against Colgate’s sidewalk bridge sustaining personal injuries. Colgate erected the sidewalk bridge but did not maintain the bridge following its erection. Colgate’s contract with Tower provided that the customer, Tower, was responsible for maintaining the sidewalk bridge on a daily basis. The contract also provided that Tower had a period of time to inspect the bridge after which they assumed responsibility for maintenance. Pursuant to the contract, Tower was obligated to defend and indemnify Colgate as a result of incidents arising out of the bridge. Tower claimed that the indemnification clause in the contract was prohibitive since it purported to indemnity a party for their own negligence. However, the Court found that this applied only to universal indemnification clauses that resulted in a covered party escaping its own negligence. The Court noted that the clause in this contract is clear that indemnity is limited and does not encompass negligence by Colgate. Accordingly, the motion for summary judgment was granted. Movant moved to renew and upon renewal, the Court adhered to its prior determination that the indemnification clause does not run afoul of the General Obligations Law and awarded defense and indemnity to Colgate from Tower. For more information, please contact Susan A. Romano at sromano@frenchcasey.com.
- Dickson v. Ring Homestead Camp, Inc., et al., New York Supreme Court, Orange County, Justice Victor Alfieri. Result: Summary Judgment awarded to client, Ring Homestead Camp, Inc. Facts: During a game of paintball, minor plaintiff sustained injury to his eye when he was shot by a paintball. Plaintiff alleged that Ring Homestead provided him with a defective mask which shifted when he was shot with a paintball and failed to protect his eyes. Ring Homestead argued that plaintiff assumed the risk of injury in voluntarily choosing to participate in paintball games, with known risks of injury. Ring Homestead also argued that no negligence on its part was the cause of plaintiff’s alleged injuries. Judge Alfieri granted Ring Homestead’s summary judgment motion, agreeing that Ring Homestead should not be liable to plaintiff who assumed the risk of injury. For more information, please contact Jenna Elkind at jelkind@frenchcasey.com.
- Luis Garcia v. Plaza 400 Owners Corp. et.al., New York Supreme Court, New York County, Justice Barbara Jaffe. Result: Defense verdict for client Rockledge Scaffold Corp. Facts: In this action, plaintiff fell off of a sidewalk bridge erected by Rockledge 15 feet to the plaza below. He sustained a fractured wrist which required two surgeries. Plaintiff, who had summary judgment over the owner and general contractor, made a pre-trial demand of 3 million dollars. Rockledge argued that the sidewalk bridge was erected to protect pedestrians and that it had no knowledge that it would be used to facilitate the work. Rockledge witnesses confirmed that a sidewalk bridge 30 feet from the building is not normally used to facilitate the work and that they were never told that the bridge would be used by a subcontractor to store materials and serve as a work platform. The jury agreed and found Rockledge not negligent. They awarded plaintiff $800,000 and found the general contractor 60% at fault and the employer 40% at fault. Rockledge was not responsible for paying any portion of the verdict due to the finding of no liability. For more information, contact Drosenzweig@frenchcasey.com.
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Sweeney v. Colgate Scaffolding & Equipment Corp., New York Supreme Court, Kings County, Justice Wayne P. Saitta, decision dated June 21, 2010. Result: Summary judgment awarded to client, Colgate Scaffolding Corp. Facts: George Sweeney, while walking near his home during a heavy snowstorm, tripped and fell under a sidewalk bridge Colgate had erected at the site. Sweeney claimed that one end of a brace on the sidewalk bridge was disconnected and hanging from a vertical support pole. Sweeney claimed the unconnected end “grabbed” his foot and caused him to fall and badly fracture his right wrist. Surgical intervention was required. Following oral argument, Justice Saitta awarded summary judgment to Colgate because plaintiff never established that there was any defect in the sidewalk bridge, or that Colgate had notice of any alleged defect. Colgate also established that once it had erected the bridge and the lease period began several days later, Colgate was not in control of the bridge, nor did it have a duty to maintain it on the day in question. Accordingly, Colgate’s motion for summary judgment was granted and plaintiff’s complaint was dismissed as against Colgate. For more information, please contact Joe French at jfrench@frenchcasey.com.
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Jackson v. Colgate Scaffold Co., New York Supreme Court, New York County, Justice Milton A. Tingling, June 2010. Result: Summary judgment awarded to client, defendant Colgate Scaffold Co. Facts: Plaintiff claimed that she tripped and fell due to a steel plate that was ramped from the sidewalk to the roadway in front of a sidewalk bridge installed by Colgate Scaffold Co. in front of a construction site in New York, New York. Plaintiff commenced suit against Colgate Scaffold Co. on the basis that Colgate Scaffold Co. installed a sidewalk bridge in front of the loss location. Plaintiff claimed that Colgate Scaffold Co. placed the steel plate in front of the loss location. The Court held that Plaintiff's arguments failed to raise triable issues of fact to deny Colgate Scaffold Co. summary judgment. In its motion, Colgate alleged it bore no liability for Plaintiff's accident because the scope of its contract and duties were limited to building a sidewalk bridge which had nothing to do with the steel plate where plaintiff allegedly fell. Plaintiff failed to raise any issues of fact to defeat summary judgment. Accordingly, the Court granted the motion for summary judgment and dismissed the complaint and all cross-claims against Colgate Scaffold Co. For more information, please contact Rosalyn Maldonado at rmaldonado@frenchcasey.com.
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Bailey v. Alex Figliolia Contracting Corp., New York Supreme Court, Queens County, Justice Kevin J. Kerrigan, December 2009. Result: Summary judgment awarded to client, defendant Alex Figliolia Contracting Corp. Facts: Plaintiff claimed that he tripped and fell due to a depressed and uneven sidewalk condition in front of his premises in Queens, New York. Plaintiff commenced suit and Alex Figliolia was brought in as a third-party defendant on the basis that water main excavation and backfilling work performed by Alex Figliolia resulted in the defective sidewalk condition. The Court held that sufficient evidence was submitted by Alex Figliolia that it did not cause the subject sidewalk defect, and that plaintiff, therefore, could not show that he could win the case on the merits. Accordingly, the Court granted the motion for summary judgment and dismissed the third-party complaint and all cross-claims and counterclaims as to defendant Alex Figliolia. For more information, please contact Jenna Elkind at jelkind@frenchcasey.com.
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Wolfson v. Rockledge Scaffold Corp, et.al., Appellate Division, Second Department, November, 2009. Result: The Second Department reversed the Supreme Court and granted summary judgment in favor of Rockledge. Facts: Plaintiff claimed that he tripped and fell over an elevation differential in the sidewalk in front of 233 Broadway, in Manhattan, New York. Plaintiff subsequently commenced suit, naming as defendants various entities including Rockledge, which had erected a sidewalk bridge in front of the premises. The Court held that sufficient evidence was submitted by Rockledge that the sidewalk bridge did not cause or create the alleged sidewalk defect which caused the subject accident. In opposition, plaintiff provided only an attorney affirmation which the Court held was without evidentiary value and failed to raise a triable issue of fact. Accordingly, the Second Department held that the Supreme Court should have granted Rockledge's motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against Rockledge. For more information, please contact Douglas Rosenzweig at Drosenzweig@frenchcasey.com.
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Keane v. Plaza Construction & Adco Electrical Corp., New York Supreme Court, Kings County, Justice Loren Baily-Schiffman, November 10, 2009. Result: Directed Verdict for client, third-party Defendant Adco Electrical Corp. Facts: Plaintiff Barry Keane, a 60 year-old ironworker, worked at the construction site as an employee of Structural Sytems/Maspeth Welding for six weeks. During that time, plaintiff worked on a roof installation project. On the day of the accident, plaintiff was assigned to work on an interior project. After receiving his foreman's instructions, he began walking toward his work area. Plaintiff claimed that although he could see across the building to his work area, he could not see his feet on the floor's surface because darkness enveloped the floor area. Consequently, he tripped over a cinderblock lying on the floor. Plaza claimed that it was not liable, despite its overall site safety and supervisory responsibilities. Instead, Plaza claimed that if the work area was dark, Adco did not properly illuminate it. Upon cross-examination, each witness called by both plaintiff and Plaza conceded that before the day in question, no one complained about darkness in the area, no one recalled any of the ligths not working, and lighting was never mentioned in Plaza's safety audit prepared just three days before the incident. At the close of all testimony, Adco successfully moved for a directed verdict as the Judge found that based upon the evidence, Plaza had failed to establish a prima facie case against Adco. Plaza and the masonry contractor were found liable and must satisfy the $450,000 award to plaintiff. For more information, please contact either Joseph A. French at jfrench@frenchcasey.com or Lance E. Benowitz at lbenowitz@frenchcasey.com.
- Poracki v. St. Mary's Roman Catholic Church et al., New York Supreme Court, New York County, Justice Herbert Kramer, October, 2009. Result: Summary Judgment awarded to client, Defendant Colgate Scaffolding Corp. Facts: Plaintiff claimed that he fell through an opening negligently created on a scaffold initially erected by Colgate Scaffolding. Colgate conceded that it constructed the scaffolding, but argued that when it was erected, the opening had been covered with planks provided by Colgate and secured, and that the scaffolding had been inspected by the client who hired Colgate and was deemed to be erected correctly and pursuant to the contract between the parties. Moreover, Colgate argued that the original planks covering the opening were moved by a different sub-contractor working at the site, who was not controlled by Colgate. The Court held that Colgate was not responsible for the opening as all evidence showed that the scaffold was erected property and according to the contract by Colgate, was not dangerous or defective at the time Colgate erected the scaffolding and that the opening in the scaffold was not caused by or due to the work of Colgate. Based on these facts, the Court granted the motion for summary judgment and dismissed the complaint and all cross-claims as to defendant Colgate. For more information, please contact Lance Benowitz at lbenowitz@frenchcasey.com.
- Solis v. Arsenal Scaffold Inc., New York Supreme Court, New York County, Justice Paul Feinman, September 9, 2009. Result: Summary Judgment awarded to client, Defendant Arsenal Scaffold Inc. Facts: From the time the case was assigned to the firm in 2008, we endeavored to convince plaintiff's counsel to stipulate to discontinue the claims against Arsenal. Plaintiff fell from a fire escape that broke away from a wall in the rear of the building where Arsenal Scaffold had worked at the front and side of the building. However, Arsenal had no obligation or responsibility for any part of the rear of the building where plaintiff fell. Plaintiff sustained multiple fractures and has undergone numerous surgeries since the incident. Because plaintiff did not agree to discontinue his claims, a motion for summary judgment was made. Plaintiff opposed, as did co-defendants. The Court granted Arsenal's motion for summary judgment because it found that Arsenal owed no duty to plaintiff and plaintiff was unable to establish that Arsenal had any responsibility for work in the rear of the building where he fell. In addition, the Court dismissed, without prejudice, the co-defendant's claims because they also had not established their right to indemnification against Arsenal, nor did they produce any contractual documents establishing such rights. The motion was made before numerous depositions commenced in order to resolve the matter without further litigation costs, a result that was achieved by this early summary judgment motion. For more information, please contact Joseph A. French at jfrench@frenchcasey.com.
- K.C. McDaniel v. 162 Columbia Heights Housing, et al., Supreme Court Kings County, Justice Carolyn Demarest, Index Numbers: 27566/05 and 18894/07, 2009 NY Slip Op 29390 (Sept. 29, 2009). Result: In a case of apparent first impression where the firm represented petitioner, an owner of a co-op apartment and 20% shareholder of the co-op corporation, and where the respondent is a Brooklyn Heights, New York co-operative building, and following a lengthy bench trial in March 2009, Justice Demarest, Supreme Court, Kings County, ruled in petitioner's favor. Petitioner sought to recover legal fees she had paid on the building's behalf as a result of earlier litigation. Respondents claimed she was not owed indemnity for the full $221,000.00 she paid in legal fees to defend the co-op and its officers. The Court held that she was entitled to indemnity in the full amount; hence, the petitioner prevailed on her indemnity claim in her 2005 lawsuit. The second proceeding, which raised an issue of first impression for the Second Department, was initiated because petitioner sought to dissolve the corporation under BCL §1104-a. Pursuant to BCL §1118, the respondents elected to buy petitioner's 20% interest in the co-op corporation. Prior to the trial, on an earlier motion brought on the petitioner's behalf, the Court had ruled that the basis for determining the fair value of petitioner's interest would be the market value of the building and any other assets of the co-op Corporation, less its liabilities. (See Matter of McDaniel v. 162 Columbia Heights Housing Corp., 2009 NY Slip Op 29047, 2009 N.Y. Misc. LEXIS 216). Petitioner's expert concluded that the building was worth $5.6 million based on comparable building sales assuming a "gut renovation" of the building to achieve its "highest and best use" as a single family residence, i.e., unencumbered by the existing proprietary leases. Petitioner's expert also commented that "the sum of the parts is worth less than the whole." Respondents' expert did not provide a value of the only asset of the Corporation, the building. For that reason, Justice Demarest determined the value of petitioner's shares by valuing the building as a whole at $4,250,000 based on a unit sold for $850,000 in the building one year prior to May 2007. Justice Demarest noted that each unit had the same number of shares, 200, thus allowing her to attribute the same value to each shareholder's interest in the Corporation. Significantly, the court's final tally of the amount due petitioner for her shares came to $839,760.68, computed as one-fifth of the corporation's value of $4,257,755 ($4,250,000 for the building plus cash deposits less liabilities) less deductions for unpaid maintenance charges of about $11,000. Justice Demarest refused to apply a discount for the pending litigation, as requested by respondents. The court flatly rejected respondents' expert's valuation of $550,000.00 of petitioner's unit. It also should be noted that the value of the building was based on its estimated value in May 2007 when the respondents elected to buy petitioner out, not the estimated value in March 2009 when the recession was in full swing. Thus, the court found the fair value of petitioner's 20% share of the Corporation to be $851,551.00 on the valuation date. For more information, please contact Joseph A. French at jfrench@frenchcasey.com.
- Cohen v. City of New York et al., New York Supreme Court, New York County, Justice Eileen A. Rakower, September, 2009. Result: Summary Judgment awarded to client, Defendant Rockledge Scaffolding Corp. Facts: Plaintiff claimed that he tripped and fell on an irregular walkway and missing sidewalk underneath a sidewalk bridge that was constructed alongside a building located at 3810 Broadway, New York, New York which plaintiff claimed was poorly lit. Rockledge conceded that it constructed the sidewalk bridge, but argued that once it was constructed, custody, care and control of the bridge, including maintenance of lighting, passed to the customer. The Court held that Rockledge had no duty to care for plaintiff, was not responsible for lighting and that there was no evidence that the sidewalk bridge was dangerous or defective. Based on these facts, the Court granted the motion for summary judgment and dismissed the complaint as to defendant Rockledge. For more information, please contact Doug Rosenzweig at drosenzweig@frenchcasey.com.
- Kevin McCarthy v. Long Island Referee Association, et al., New York Supreme Court, Suffolk County, Justice Arthur G. Pitts, August, 2009. Result: Summary Judgment awarded to Defendant Long Island Referee Association ("LISRA"). Facts: Justice Pitts held that LISRA could not be held vicariously liable for the acts of a referee who was not its employee. For more information, please contact Rosalyn Maldonado at rmaldonado@frenchcasey.com.
- Harold H. Adams, Jr. v. K.C. McDaniel, New York Supreme Court, New York County, Justice Carol Edmead, June 3, 2009. Result: Summary Judgment awarded to Defendant. Facts: Defendant prevailed on a motion for summary judgment seeking dismissal of a default judgment entered in South Carolina on the basis of lack of personal jurisdiction. The South Carolina jugdment was entered against the Defendant as the executrix of a New York estate. The Court found that the Defendant did not have sufficient minimum contacts with South Carolina to satisfy due process and that the Defendant had been discharged of her duties as executrix prior to the commencement of suit by Plaintiff in South Carolina. For more information, please contact Doug Rosenzweig at drosenzweig@frenchcasey.com.
- Jennifer Small v. Designer Exposure NYC, LLC, and Maria Williams, New York Supreme Court, New York County, Justice Jane S. Solomon, 2009. Result: Client successful in action for fraud and conversion. Facts: Plaintiff commenced an action for fraud against Defendants' retail business. The claims arose from phantom charges, excessive over-billing, misrepresentation, and conversion. Defendants' answer was stricken after their counsel was relieved on September 12, 2008. Defendants failed to appear for a compliance conference either in person or through counsel on November 17, 2008. For that reason, Justice Solomon struck their answer and ordered Plaintiff to an inquest. At the inquest on May 15, 2009, Plaintiff was awarded $283, 283.81 with interest from April 3, 2007 on the first, second and third causes of action and $2,250.00 with interest from April 3, 2007 on the fourth cause of action for conversion. For more information, please contact Rosalyn Maldonado at rmaldonado@frenchcasey.com
- Thiele v. Oakland Valley, Inc. d/b/a Oakland Valley Race Park, New York Supreme Court, Orange County, April, 2009. Result: Summary Judgment awarded to client, Defendant Oakland Valley. Facts: Steven Thiele, a chiropractor and former power boat racer, went to the Defendant's go-kart track in June, 2004 to take lessons in driving go-karts. Before beginning, Plaintiff read and executed a "Release and Waiver of Liability, Assumption of Risk and Indemnity Agreement." Plaintiff drove a go-kart the entire morning on the date of loss without incident. Following the lunch break and after the track's entire straightaway was opened, Plaintiff drove down the straightaway at a high rate of speed. He was unable to negotiate the turn at the end of the track, however, and crashed through protective barriers. He was then taken to a local hospital and treated. He then began a long course of treatments, primarily with chiropractors, all around the country. At the close of discovery, we moved for summary judgment on behalf of Oakland Valley Race Park, which was opposed by Plaintiff. Ignoring Plaintiff's arguments to the contrary and Plaintiff's expert affidavit, the court found that Plaintiff was bound by the release he had signed and that the release barred Plaintiff's claims. For more information, contact Joe French at jfrench@frenchcasey.com.
- Jones v. ADCO Electrical Corp. et. al, New York Supreme Court, New York County, April, 2009. Result: Defense Summary Judgment. Facts: Summary judgment was granted to ADCO Electrical Corp. by Justice Jane S. Solomon of the New York Supreme Court in New York County. Plaintiff's complaint alleged a concealed defect on the floor of her office. ADCO performed electrical work only in the ceiling space of Plaintiff's office. Upon review of the record, the court granted ADCO summary judgment because it found that there was no evidence indicating that ADCO worked on the floor of Plaintiff's office and consequently, its work could not have resulted in the condition that led to Plaintiff's injury. Justice Solomon further found that ADCO was not obligated to indemnify the general contractor involved in the action because Plaintiff's claim did not arise from the performance of ADCO's work. For more information, please contact Lance E. Benowitz at lbenowitz@frenchcasey.com.
- Tyshon Vailes v. Nassau County Police Activity League, New York Supreme Court, Nassau County, Justice Thomas P. Phelan, April, 2009. Result: Summary Judgment awarded to Defendant. Facts: Summary judgment was granted to Defendant Police Activity League (PAL), an organization that offered a summer recreation program in Roosevelt, New York. The Plaintiff, a ten-year-old camper, was struck by a ball as he was playing dodgeball. The Plaintiff had attended PAL's camp for four (4) years and had been playing dodgeball for three (3) years. Plaintiff sought to oppose PAL's motion with an expert affidavit that had not been served during pre-trial disclosure. Justice Thomas P. Phelan of the New York Supreme Court in Nassau County found that the danger of being hit by a ball was common in a game of dodgeball and was a danger foreseeable by Plaintiff. The court did not consider the Plaintiff's expert affidavit because it was served after the filing of a note of issue and certificate of readiness and was not identified during pre-trial disclosure. For more information, contact Rosalyn Maldonado at rmaldonado@frenchcasey.com.
- Matta v. Rudinski, April, 2009. Result: Defense Summary Judgment. Facts: Summary judgment was granted to a not for profit bicycle club, which organized a charity bicycle tour in Goshen, New York. The plaintiff, an avid bicyclist and participant in the tour, admittedly ran a stop sign at the intersection of a 55 mph roadway and was struck by a truck, which was unable to avoid him. Justice Elaine Slobod of the New York Supreme Court in Orange County found that the Club had no duty to ensure that the plaintiff complied with easily observable offical traffic control devices and that the route for the tour neither created nor increased any existing risk for which the Club could be held negligent. For more information, contact Susan Romano at sromano@frenchcasey.com.
- AT&T Corp. v. Bishamon Industries Corp., March, 2009. Result: Action against client dismissed due to lack of personal jurisdiction. Facts: Plaintiff AT&T Corp. initiated an action in New Jersey arising out of a contract dispute with Defendant Bishamon Industries Corp., a California corporation. The New Jersey Superior Court dismissed the action, finding that Bishamon's contacts with New Jersey were insufficient such that it could not properly exercise personal jurisdiction over Bishamon. For more information, contact Barry Meade or Rosalyn Maldonado at bmeade@frenchcasey.com or rmaldonado@frenchcasey.com.
- Matter of McDaniel v. 162 Columbia Hgts. Hous. Corp, 2009 NY Slip Op 29047; 2009 N.Y. Misc. LEXIS 216, February, 2009: Result: Client entitled to recover percentage of net asset value of cooperative housing corporation. Facts: In a proceeding for dissolution of a residential co-operative corporation pursuant to Business Corporation Law §1104-a, Justice Carolyn E. Demarest granted our motion to award our client a percentage of the net asset value of the cooperative corporation, acknowledging that net asset value, not the value of an individual apartment unit, is generally the standard applicable in evaluating real estate and investment holding companies. For more information, contact Joseph A. French or Rosalyn Maldonado at jfrench@frenchcasey.com or rmaldonado@frenchcasey.com.
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Oleg Ivanov v. City of New York, Metropolitan Transit Authority, New York City Transit, Royal Charter Properties and Colgate Scaffolding & Equipment Corp., January, 2009. Result: Defense Summary Judgment: We moved for summary judgment based upon the deposition testimony taken and investigative reports. Facts: Justice Donna J. Mills of the Supreme Court of New York County granted our motion for summary judgment dismissing all claims against Colgate Scaffolding & Equipment Corp. After hearing argument, Judge Mills agreed with our position that Colgate was not liable for any negligent acts which may have been the proximate cause of Plaintiff's alleged accident, that Colgate violated no legal duty owing by it to any other party, rejected the Engineer's affidavit submitted by the plaintiff in opposition, and granted the motion dismissing all claims against Colgate Scaffolding & Equipment Corp. For more information, please contact Bryan F. Tiggs at btiggs@frenchcasey.com.
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Michael Almodovar v. New York & Atlantic Railway, December 2008. Result: Defense Summary Judgment: This motion was granted prior to any depositions taking place and with minimal costs incurred by the client. Facts: Justice Lawrence Knipel of the Supreme Court of Kings County, granted our motion for summary judgment dismissing all claims against New York & Atlantic Railway. After hearing argument, Judge Knipel acknowledged that New York & Atlantic Railway submitted affirmative proof that it had nothing to do with the ownership, operation, repair, maintenance, or other use of the track where the subject incident is alleged to have occurred, concluded that there were no factual issues sufficient to defeat the motion, and granted the motion dismissing all claims against New York & Atlantic Railway For more information, please contact Douglas R. Rosenzweig at drosenzweig@frenchcasey.com.
- Renee Hayes v. The City of New York, May 2008: Result: Defense Summary Judgment: Based on the information obtained through deposition and investigation, we moved for summary judgment (pre-note of issue) which was granted following oral argument by Justice Robert J. Miller. Facts: Plaintiff sued The City of New York, New York and Atlantic Railway, Long Island Railroad, and Metropolitan Transit Authority, as a result of alleged severe personal injuries sustained on October 19, 2004, when her vehicle allegedly came into contact with a hole on Stagg Street, Brooklyn, New York in the vicinity of railroad tracks. Following a thorough investigation, we were able to prove that our client, New York Atlantic Railway, did not own, operate, maintain, manage, supervise, inspect, repair or control the subject railroad tracks or roadway at any time prior to and including the date of plaintiff’s alleged accident. For more information, please contact Douglas R. Rosenzweig at drosenzweig@frenchcasey.com.
- Michael Ulses and Holly Ulses v. Zeckondorf Brothers Realty Limited Partnership Co., J.A. Jones-GMO,LLC and Atlantic-Heydt Corp., June 2007: Result: Action dismissed against Atlantic. Appeal pending. Facts: Plaintiff sought recovery for his injuries from general contractor J.A. Jones, and the owner of the site, W10Z/515 Real Estate s/h/a Zeckendorf Brothers Realty. He also sought recovery from Atlantic-Heydt, our client, one of the subcontractors at the worksite, on the theory that its employees negligently threw a metal pipe that struck the plaintiff in the head. Significant injuries, including traumatic brain injury, and an inability to return to work, were alleged. During the trial, no proof of negligence on the part of Atlantic-Heydt was demonstrated and proximate cause was not proved. However, the jury returned a verdict against Atlantic. Upon motion, the trial Court (Bluth, J.) set aside the verdict as against Atlantic-Heydt asserting that the verdict was not supported by the evidence at trial. The motion successfully demonstrated that the actions of workers a quarter of a block away from the plaintiff could not have caused plaintiff’s injuries. The trial Court was persuaded that there was no support for the jury’s finding of proximate cause and there was no evidence of any negligence. For more information, please contact Joseph A. French or Susan A. Romano at jfrench@frenchcasey.com or sromano@frenchcasey.com.
- Grossman v. Pop Warner Little Scholars, February, 2007: Result: Defense Verdict. Facts: While participating as a quarterback during a scrimmage, Plaintiff sustained a fractured femur after being tackled. Plaintiff argued that he should have been given a red pinnie to wear over his jersey, which would have indicated that he was not to be tackled while playing the quarterback position. Plaintiff’s expert withdrew shortly after cross examination after his credentials came under attack. The jury accepted the defense argument that tackling was an inherent risk associated with playing football. For more information, please contact Joseph A. French at jfrench@frenchcasey.com.
- Ulrich v. Gymnastics City, Inc., December 2006: Result: Defense Verdict. Facts: Plaintiff sued a recreational facility alleging she was injured when she landed in the safety pit and struck the concrete floor of the gym. Plaintiff was an experienced gymnast who, under the supervision of her coaches, was performing a tumbling pass into the safety pit when the accident allegedly occurred. In accordance with all recommended guidelines, the safety pit was filled with foam cubes. At trial, defendant’s expert testified that the safety pit was installed and maintained properly and did not violate any known safety standards. Defendants argued that plaintiff assumed the risk of injury by participating in competitive gymnastics. For more information, please contact Susan A. Romano at sromano@frenchcasey.com.
- Daniel Stiglianese v. Macerich Queens Plaza Mall, Skanska v. Atlantic-Heydt Corporation, Index No. 4803/04, Supreme Court, Nassau County; Justice Thomas Feinman. Result: Defense verdict for Defendant/Third-Party Defendant. Facts: Plaintiff alleged that he tripped and fell due to a defective railing and a defective staircase. Plaintiff underwent open reduction surgery for a comminuted fracture of the left and lateral tibial plateau. During trial, Atlantic established that although it had constructed the temporary staircase, it had left its installation to the general contractor. It also established that it exercised no custody, control of supervision over the work space at issue. Before the jury was charged, plaintiff discontinued his direct claims against Atlantic. Shortly thereafter, the jury returned a unanimous defense verdict for Atlantic as it had remained a third-party defendant. For additional information, contact Joseph A. French at jfrench@frenchcasey.com.
- Sali Asllani v. Spence School/Glenridge Fabricators/F.J. Sciame v. Atlantic-Heydt Corporation, Index No. 15002/03, Supreme Court, Bronx County; Justice Kenneth Thompson April 2007; Result: at the end of a four week trial, and after Atlantic’s counsel had established that Atlantic was not culpable for the incident that caused plaintiff to sustain severe lumbar injuries, Atlantic secured a discontinuance of all claims pleaded against it. For additional information, contact Joseph A. French at jfrench@frenchcasey.com.
- Rita Esposito v. The Salvation Army, Index No. 116561/04, Supreme Court, New York County; Justice Helen Freedman Result: Following plaintiff’s request that the jury return a verdict of $650,000.00, the jury found plaintiff 57% liable, and only awarded plaintiff $43,000.00. Following the reduction, plaintiff only received $18,500.00. Facts: Trip and fall in front of Salvation Army’s Manhattan headquarters. Defense argued that if there was a defect, it was open and obvious. Open reduction of plaintiff’s fractured right wrist. For additional information, contact Joseph A. French at jfrench@frenchcasey.com.
- Martinez v. Tishman Construction Corp., Supreme Court, New York County; Justice J. Edward Greenfield Result: Defense Summary Judgment for Third Party Defendant. The court dismissed third-party plaintiff's complaint holding that third-party defendant, Hedyt Contracting Corporation, did not have any common-law or contractual obligation to indemnify the general contractor. Unanimously affirmed on appeal. For additional information, contact Joseph A. French at jfrench@frenchcasey.com.
