Aurea Nunez v. The Salvation Army, Motion for Summary Judgment Granted
In a recent twenty-six page Decision, Judge Robert A. Onofry granted our motion for summary judgment dismissing the Complaint and all causes of actions against our client, The Salvation Army. Plaintiff in this matter alleged that she tripped and fell on a purported defect/hole/crumbling of the concrete in front of a Salvation Army store.
The Court found that the Salvation Army demonstrated, prima facie, that no hole currently exists in the area where the plaintiff fell, and that no hole existed at the time of her trip and fall. The Court further found that the Salvation Army demonstrated, prima facie, by competent evidence in admissible form, from several witnesses, that the area in question had not changed and had not been repaved or repaired since the accident. Additionally, the Court noted that as plaintiff did not purport to have conducted a search of building permits for evidence or work or repairs performed in the area, and as plaintiff did not hire her own expert to conduct an inquiry into whether work had been performed in the area, that plaintiff’s assertion that she tripped and fell in a hole was conclusory and failed to raise a triable issue of fact.
For more information, please contact Maria E. Stamatelatos, Esq. at email@example.com
SENECA INSURANCE COMPANY, ET AL.V.MT. HAWLEY INSURANCE COMPANY, ET AL.- MOTION TO DISMISS GRANTED, CASE DISMISSED IN FULL ALONG WITH COSTS AND DISBURSEMENTS By Scott J. Laird, Esq.
June 1, 2020 • Posted By Scott J. Laird • Insurance Coverage
In a recent 6-page Decision, Judge Gerald Lebovits granted our pre-Answer motion to dismiss, in full, and dismissed all claims filed against our client AJ Greenwich Contracting Inc. (“AJ Greenwich”). Judge Gerald Lebovits also awarded AJ Greenwich costs and disbursements. The action was dismissed in its entirety.
The Decision found that the underlying agreement between AJ Greenwich and Plaintiff Seven Up Realty LLC (“Seven Up”) did not provide that AJ was to name Seven Up as an “additional insured” on its commercial general liability insurance policy issued by co-Defendant Mt. Hawley Insurance Company (“Mt. Hawley”). Seven Up retained AJ Greenwich pursuant to an AIA Contract to perform certain work at a commercial building in the Bronx, New York.
The Court also correctly noted that “the plain language of the Agreement cannot be read to require Mt. Hawley to defend and indemnify Seven Up as an additional insured under the general liability issued to AJ Greenwich.”
For more information, please contact Scott J. Laird, Esq. at firstname.lastname@example.org
Queens County Supreme Court - Motion to Dismiss Pursuant to CPLR 3211(a)(7) Granted (Ober v. The Dormitory Authority of the State of New York, Index No. 709273/2018
Our firm successfully briefed a dispositive motion seeking dismissal of plaintiff’s complaint and all cross-claims, with prejudice. After considering all papers, Honorable Joseph J. Esposito, J.S.C. granted dismissal of the action and all cross-claims against our clients, with prejudice, pursuant to CPLR Section 3211(a)(7) for plaintiff’s failure to timely serve and file a Notice of Claim.
Plaintiff in the underlying action alleged she tripped and fell on a purported defect located on a roadway of a college campus. The building was owned by our client, who was an out-of-possession landlord with no duty to maintain, inspect, or repair the subject premises. In addition, Education Law Section 6203 was clear on placing responsibility for care and management of the college campus upon CUNY, who was not a party in this case. CUNY, which otherwise denies liability, was not a named party because plaintiff failed to serve this entity with a Notice of Claim. Plaintiff’s application to the Court of Claims seeking leave to file a late Notice of Claim was denied only four months before the instant action was filed.
The Court acknowledged that plaintiff’s application to file a late Notice of Claim against the non-party, which was the proper party to sue, was denied by the Court of Claims a few months before plaintiff commenced the instant personal injury matter.
Although a Notice of Claim was a prerequisite to suing our client, none was filed. Despite failing to file and serve the requisite Notice of Claim, plaintiff improperly commenced an action against our clients and simultaneously filed a motion, under a separate Index Number, seeking leave to file a late Notice of Claim against our client, was denied by the Honorable Purificacion after issue was joined in the case at bar. We moved to dismiss the matter because plaintiff did not satisfy the prerequisite Notice of Claim requirement, which is a condition precedent to commencing a lawsuit against a public corporation. Additionally, we moved for summary judgment on the grounds that our clients did not own, maintain, or operate the subject premises, and thus owed no duty to plaintiff.
A late notice of claim served without leave of court is a nullity. Cassidy v. Riverhead Cent. Sch. Dist., 128 A.D.3d 996, 997 (2d Dept. 2015); Matter of Katsiouras v. City of New York, 106 A.D.3d 916, 965 (2d Dept. 2013); Robinson v. Board of Educ. of City Sch. Dist. of City of N.Y., 104 A.D.3d 666 (2d Dept. 2013); Decoteau v. City of New York, 97 A.D.3d 527 (2d Dept. 2012); Chtchannikova v City of New York, 138 AD3d 908, 909 (2d Dept. 2016). “A notice of claim, served in accordance with the provisions of Section 50-e of the General Municipal Law, shall be a condition precedent to the commencement of an action against the corporation, its directors, officers, employees or agents.” Public Authorities Law § 2570.; General Municipal Law §§ 50-e; 50-i(1); Feliciano v. New York City Housing Authority, 123 A.D. 3d 876 (2d Dept. 2014). A “public corporation” includes a municipal, district, and public benefit corporation. Martin v. Town of Esopus, 57 Misc; Sun v. City of New York, 131 A.D.3d 1015, 1016, 16 N.Y.S.3d 319; Decoteau v. City of New York, 97 A.D.3d 527, 527, 947 N.Y.S.2d 343; Shahid v. City of New York, 50 A.D.3d 770, 770; Davis v City of New York, 250 AD2d 368, 369, (1st Dept. 1998). Further, it has been previously held that service of a summons and complaint within the limitations period does not excuse the failure to file a timely notice of claim, nor is it an acceptable substitute for a timely notice of claim. Davis v. City of New York, 250 A.D.2d 368, 370 (1st Dept. 1998). Compliance with a Notice of Claim is a condition precedent to maintenance of an action, not merely a matter of defense, and must be both pleaded and proved by plaintiff or he fails to make out a cause of action. Natoli v. Board of Education, 277 A.D. 915 (2d Dep’t 1950), affd. 303 N.Y. 646 (1951).
In addition, the failure to file a timely notice of claim may be raised any time prior to trial. Id.; Davis v City of New York, 250 A.D.2d 368, 369 (1st Dept 1998); Seif v City of New York, 218 AD2d 595, 593 (1st Dept 1995).
Thus, the Court’s ruling further supports precedent that failure to file a Notice of Claim is fatal to a cause of action regardless of the merits of a claim, which in this case we argued was meritless.
CUA Lawyers Alumni Magazine
Each year, Catholic Lawyers Alumni Magazine recognizes and honors its distinguished alumni. The purpose of the annual alumni leadership award is to recognize outstanding alumni for their individual achievements, contributions to their industries or professions, service to their community and demonstrated loyalty to Columbus School of Law.
Joseph French and Moira Casey were both honored with Distinguished Alumni Awards. Please see their interviews with CUA Lawyers discussing their career paths, great challenges and favorite memories from Catholic Law.
Joseph French, Class of 1983:
Can you tell us a little bit about your background?
I grew up in New Jersey, at the top of the Jersey Shore. I attended and graduated from the University of North Carolina at Chapel Hill in 1979. Following graduation, I returned to New Jersey and worked for the National Park Service for one year. During that year, I harbored thoughts about studying in Ireland and researching additional material concerning my college honors thesis. For several reasons, those plans fell through mid-winter. At the last possible time, I took the LSAT, and applied to several law schools on the deadline date. Appropriately, several rejection letters soon appeared in my mailbox. However, several law schools placed me on their wait lists. Eventually, I was accepted by these schools, and I decided to attend CUA.
Why did you decide to attend Catholic Law?
My decision to attend CUA was based on several factors. First, it had a strong and respected reputation. Second, I would be largely responsible for paying for law school. I realized that opportunities for part-time work were more numerous in Washington, D.C. Third, I Had visited the campus several times to visit friends during college. I liked the city and I liked the campus, and my friends always spoke well of both. Lastly, although my plan to study in Ireland fell through, I went on a backpacking trip throughout Europe during the summer of 1980. While rainfall, my friend and I were invited into a home for tea. My host that afternoon turned out to be Dead Michael Noone. He spoke very highly of CUA Law, the faculty, and the students. When I was making my decision, I recalled that afternoon tea, and it certainly influenced my decision to attend CUA Law.
Can you discuss your early career developments?
During my third year, I interviewed with and eventually accepted an offer to work for the Brooklyn, New York, District Attorney. I worked there for nearly four and a half years. I worked hard, put in long hours, and tried dozens of felony trials. Brooklyn was a very different place than it is now, but I had a great time, and gained invaluable litigation and trial experience. I was very fortunate to make lifelong friendships while an Assistant District Attorney. I was also fortunate to work with very committed and talented prosecutors, and under great supervisors. Of course, after two years in the office, I married by wife and fellow CUA Law graduate, Moira Casey, ’83. It was not planned, but Moira and I both went to the District Attorney’s office after graduation.
Are you where you expected to be at this stage of your career?
Certainly when I graduated in 1983, I do not believe I had any realistic expectations where I would be or what I would be doing nearly 36 years later. Nevertheless, I am very satisfied with my professional life and with my career. Ten years ago, Moira and I started French & Casey, LLP, and that, for me, has been a great development.
What is the most rewarding part of your job? What are the biggest challenges?
The most rewarding part of my job is working with my colleagues at the firm, followed by working with our clients who entrust us with their work. My challenges are similar to challenges many litigators face, such as time constrains, deadlines, and for me, managing the firm while maintaining my litigation practice. I would not, however, have it any other way.
What advice would you give to young lawyers or law students who have similar legal aspirations?
I would advise young lawyers to work hard, to be open to new challenges, to question, to be professional and civil with colleagues and with your adversaries, to keep your sense of humor close at hand, to be involved in your community and perhaps most importantly, be kind and respectful to those you meet in life, regardless of the setting.
Do you have a favorite memory from Catholic Law?
I do not have a single favorite memory from law school. The many good friends I have from CUA, my teammates on our intramural basketball team, Res Judicata, and, of course, the annual Halloween parties held in the Arliss Street, Silver Spring house I shared with my roommates, are all fondly remembered.
How do you balance your work and personal life?
Since I graduated, I think I have struck and an appropriate balance between my work, my family and friends, and outside commitments. Once we started our family, I think my focus sharpened, and I learned what had to be done and when to do it. Of course, when I occasionally strayed, my wife and daughters did not hesitate to remind me about what truly is important in life.
Moira Casey, Class of 1983:
Can you tell us a little bit about your background?
I grew up in Douglaston, Queens, NYC, and went to the University of Vermont, where I received a degree in Business. After law school, I worked as a prosecutor in the Kings County District Attorney’s Office for 12 years. I tried criminal cases and wrote and argued appellate briefs. I got married to a fellow alumni, Joseph French, and had three children while at the District Attorney’s Office.
Why did you decide to attend Catholic Law?
I wanted to go to law school in Washington, D.C., and the school had a good reputation in public interest law.
Can you discuss your early career developments?
After the District Attorney’s office, I started my own law firm doing criminal appellate work on the defense side. I quickly transitioned into becoming a trust and estates attorney specializing in estate planning, probate and administration, and estate litigation.
What is the most rewarding part of your job?
The most rewarding part of my job is when I get to help people either get their affairs in order in estate planning, settle an estate of a loved one at a very difficult time, or resolve a dispute in a family over an estate.
Are you where you expected to be at this stage of your career?
Yes. Approximately 10 years ago, I combined my practice with my husband’s practice to form French & Casey LLP. We specialize in commercial litigation and trusts and estates. We have 12 attorneys working for us at our office in downtown Manhattan. We also have a satellite office in Douglaston, Queens.
What advice would you give to young lawyers or law students who have similar legal aspirations?
I would advise young lawyers to keep an open mind in their career choices, for there are so many options with a law degree.
Do you have a favorite memory from Catholic Law?
I enjoyed my time at CUA Law, especially all the friends that I met. Although we worked hard, we also had a lot of fun. It probably helped that I met my husband on the first day of school.
How do you balance your work and personal life?
It is difficulty, but I try to find time for things I enjoy, like tennis and spending time with my husband and three grown daughters. I try to be organized so I can work efficiently and thus have more free time.
Leitch-Henry v. The Doe Fund (2nd Dep’t)
In Janet Leitch-Henry v The Doe Fund, Inc. (2nd Dep’t 2019, 2019-06212), our firm successfully overturned a Kings County Supreme Court judge’s decision to deny our client The Doe Fund’s motion for summary judgment, and consequently awarded summary judgment in our client’s favor.
The plaintiff in the underlying action alleged she tripped and fell on a defect in the exterior of the property near the front entrance of a building in Brooklyn (noted by plaintiff and the Court to be on the “sidewalk”). The building was owned by the plaintiff’s employer, who leased the basement to our client The Doe Fund. Plaintiff filed a personal injury action against The Doe Fund, alleging negligence in connection with an alleged maintenance and repair obligation.
The parties’ testimony confirmed that plaintiff did not report any issue with the property, either before or after the accident, to The Doe Fund, nor was it established that The Doe Fund created any alleged defect with the front entryway of the property or otherwise affected any repairs to this particular area of the property. Moreover, the lease agreement between the building owner and The Doe Fund revealed that the tenant was only obligated to maintain and repair its leased premises and areas that were “adjacent to” such leased premises. As a result, The Doe Fund filed a motion for summary judgment, which was denied by the Kings County Supreme Court after a (brief) oral argument.
On appeal, The Second Department noted that liability for a dangerous condition is predicated upon ownership, occupancy, control or special use of the property. Ruffino v. New York City Tr. Auth., 55 A.D.3d 817, 818. Further, a tenant of property abutting a public sidewalk “owes no duty to maintain the sidewalk in a safe condition.” Martin v. Rizzatti, 142 A.D.3d 591, 592-593. Liability cannot be imposed unless the lessee “created the condition, voluntarily but negligently made repairs, caused the condition to occur…or violated a [relevant] statute or ordinance.” Id.
In the case at bar, not only did The Doe Fund have merely an obligation to maintain areas “adjacent to” the leased premises, but it did not otherwise cause or create the condition complained-of by plaintiff. Since The Doe Fund did not create the alleged defect, make special use of the sidewalk, violate any applicable statute, or otherwise contract to maintain this precise area of the sidewalk/property where the accident occurred, and because plaintiff failed to raise a triable issue of fact with regard to these issues, the Second Department held that the Supreme Court should have granted The Doe Fund’s motion for summary judgment.
Accordingly, the appellate court reversed the May 2, 2019 order denying The Doe Fund’s motion for summary judgment, on the law, and further held that summary judgment dismissing the plaintiff’s complaint was granted.
This result is an excellent one for our firm, as well as for commercial tenants who encounter claimants alleging dangerous conditions on areas of the property that are not explicitly contemplated by the lease (especially the sidewalk). Unless a tenancy agreement specifically and entirely displaces the landowner’s general duty to maintain a sidewalk, this obligation remains with the owner. See Paperman v. 2281 86th St. Corp., 142 A.D.3d 540. The Second Department here reviewed the lease documentation and parties’ testimony and determined that the trial court should have found that The Doe Fund had no duty to maintain or repair the area in which plaintiff’s alleged accident occurred, an important recent decision about which personal injury practitioners should be aware.
Pre-Discovery Motion for Summary Judgment Granted
On October 9, 2019, Justice Thomas P. Aliotta granted summary judgment dismissing all claims and cross-claims against our clients, Kenbar Development Center LLC and Gateway Arms Realty Corp., on the basis that neither entity owned or had any duty with respect to the ownership, operation, management, maintenance and control of the premises or public sidewalk where plaintiff’s fall occurred.
Plaintiff’s counsel opposed the motion, arguing that the motion was premature in that significant discovery remained outstanding, including party depositions. Following oral argument, Justice Aliotta granted our motion in its entirety and dismissed the complaint and all claims and cross claims against Kenbar and Gateway, with prejudice.
See Jeanette Pagan v. Kenbar Development Center LLC, et. al., Index No. 150922/2019, Supreme Court, Richmond County, October 9, 2019. For further information, please contact Sarah A. Trepel at email@example.com.
Petition for Article 81 Guardianship Granted
On September 18, 2019, French & Casey, LLP obtained a decision in Supreme Court, Nassau County, granting our petition to have our client appointed guardian for her adult daughter who suffered a brain injury following surgery, pursuant to Article 81 of New York’s Mental Hygiene Law. The guardianship hearing was contentious because both the attorney for the incapacitated person from Mental Hygiene Legal Services and the Court Evaluator argued that our client should not be appointed guardian or at the very least have a co-guardian appointed with our client. However, following the hearing, the Court agreed with our position and granted our petition in its entirety. Our client was appointed guardian of the personal needs and property management for her adult daughter, and she will now be able to bring a malpractice case against the doctors and hospital where her daughter had surgery and suffered the brain injury.
For more information regarding Article 81 guardianship proceedings, please contact Sarah A. Trepel at firstname.lastname@example.org.
We are proud to advise that for the second year in a row, Joe French has again been selected as one of the New York Super Lawyers of 2019, while Devika Kapoor has again been selected to the 2019 Super Lawyers' Rising Stars. We congratulate both on their selections.
BRONX DEFENSE VERDICT
On May 15, 2019, Joe French obtained a defense verdict from a Bronx Civil Court jury. (When plaintiff was unavailable for trial in Bronx Supreme in December 2018, the presiding Judge transferred the case pursuant to CPLR §325(d)). Plaintiff alleged that our client, the driver of a Salvation Army owned car and himself a Salvation Army employee, struck her while she was in a crosswalk and caused her to fall to the road. She alleged numerous injuries, primarily to her left shoulder and lumbar spine. She had not returned to work since her May 2014 accident. She had several surgical procedures.
Our client, Roosevelt Lewis, claimed he was on a bank run and had just turned on to Fordham Road from Jerome Avenue. Lewis maintained that he was on the far left lane of this three lane road when plaintiff walked into the passenger side of his car. A Salvation Army employee who was a passenger in the back seat corroborated the testimony of Mr. Lewis. Evidence was adduced demonstrating that plaintiff’s version was unreliable and highly suspect.
The jury deliberated for approximately one hour before returning a verdict for defendants Lewis and the Salvation Army, which was represented by their attorney, Al Lucia.
For more information please contact Joe French at email@example.com
Joseph A. French
FRENCH & CASEY OBTAIN FAVORABLE DISMISSAL OF ACTION IN BRONX COUNTY BASED UPON THE TRIVIAL DEFECT DEFENSE
In an action involving a trip and fall on an alleged defect on the public sidewalk, summary judgment was favorably decided by Justice Howard H. Sherman on May 22, 2019. French and Casey moved for summary judgment based upon our expert’s findings, arguing that the Plaintiff’s complaint must be dismissed since the alleged “mis-leveled” sidewalk flag upon which Plaintiff tripped was trivial in nature and not actionable at law. The maximum height differential measured less than 3/16” and the section identified by Plaintiff, at the point of loss, measured less than 5/32” to less than 6/32”.
Judge Sherman agreed with our position and stated in his Order and Decision dated May 22, 2019 that the Plaintiff’s counsel failed to rebut our expert’s findings. The Plaintiff’s testimony that the unleveled portion of the sidewalk was “about an inch” together with the accompanying photographs of the alleged defect, did not rebut the conclusions of our expert and was not probative since the plaintiff’s counsel never measured the alleged defect.
See Annette Jackson v. Amber Hall, L.P., et. al., Index No. 304945/2014, Supreme Court, Bronx County, May 22, 2019. For further information, contact Andre A. Brochetelli at firstname.lastname@example.org
Mikeshina v. Tishman Construction Corporation, et al., Supreme Court, New York County – Motion for Summary Judgment on Labor Law Sections 200, 240 and 241(6) GRANTED:
The Court granted third-party defendant’s motion for summary judgment dismissing Labor Law Sections 200, 241 and 241(6). Costs and disbursements were also awarded and the action was dismissed in its entirety. Judge W. Franc Perry’s 18-page decision upheld the intent of the Labor Law and found that the scaffold erected by Atlantic Hoisting & Scaffolding LLC at the Jacob Javits Center was defect-free. It also found that plaintiff’s alleged accident was not the result of an elevation differential as plaintiff did not fall from the scaffolding. Plaintiff, a bridge painter, was walking up a scaffolding staircase when her lanyard allegedly became caught on a hand rail, causing her to fall on the scaffolding staircase. The Court correctly held that plaintiff was provided with proper safety equipment (a safety harness belt and lanyard) and the alleged fall was not the result of a dangerous, hazardous, or defective condition. As such, plaintiff’s Section 240 and 241(6) claims were dismissed. Finally, the Court dismissed the Labor Law Section 200 claims holding that there was no evidence of a dangerous condition and that Atlantic did not have actual or constructive notice of such condition.
Scott J. Laird
Hirsch v Yeshivath Kehilath Yakov of Monsey, Inc., et al, Supreme Court, Kings County (No. 517772/2016): REIMBURSEMENT FOR CO-DEFENDANT’S DEFENSE COSTS REGARDING AN OFF-PREMISES INJURY NOT AWARDED PURSUANT TO LEASE
Grant D. Zacharias, counsel to the firm, recently appeared in front of the Honorable Lara Genovesi in the Supreme Court of Kings County to oppose a co-defendant/landlord’s motion for summary judgment seeking reimbursement for its defense costs incurred in defending a lawsuit based upon an off-premises injury sustained by a minor child.
Our client was and is a yeshiva school operating in Rockland County, New York, and co-defendant is the owner of the building at which the school is located. Pursuant to the parties’ lease agreement, the school was obligated to defend the owner for personal injuries “occurring in or about the premises,” language which was identical to that which was at issue in Raven v. Universal Strapping Corp., 131 A.D.3d 595 (2d Dep’t 2015), an appellate decision originating in Kings County. The court in Raven found that such language did not apply to a common-area located on the subject premises over which the tenant/movant had no control or maintenance responsibilities.
In the case at bar, the minor child’s injuries were sustained off the premises, in an area our client did not own or rent and for which our client had no control or maintenance responsibility. Accordingly, Judge Genovesi denied co-defendant’s motion for summary judgment, relying upon Raven to hold that our client’s “duty to defend” and/or “indemnify” did not extend to off-premises personal injuries.
While this ruling is a win for our client, the decision should also serve as a cautionary tale for those who draft commercial lease agreements to take great care in crafting the “indemnification” provisions of such leases to ensure that the interests of one’s client (whether landlord or tenant) are fully protected.
On December 11, 2018, Joe French was honored by the New York City Brehon Law Society at it’s annual holiday party. Before 150 guests, French was honored for service for participation in the Brehon Lawyer Society representative on the Independent Judicial Screening panel for the Civil court, for New York County. Super Lawyers of New York: French and Casey LLP is pleased to announce that two of its attorneys were recently honored as Super Lawyers. Joe French was named in the Construction Law Area for the third successive year. Devika Kapoor was honored in the “Rising Stars” category. Our congratulations to both.
Rodriguez v. Franklin Avenue Armory Women’s Shelter et al., - Complaint Dismissed: A complaint filed with the Division of Human Rights was dismissed, and a finding of no probable cause found, regarding a complaint of alleged unlawful discriminatory practices due to national origin, race/color. Evidence was submitted to the Division which showed that Franklin Avenue Armory Women’s Shelter did not engage in unlawful discrimination against Complainant, and the Complaint was dismissed. For further information on this or other related case, please contact Susan A. Romano.
Buckstine, v. Jordan Schor, et al., Supreme Court, Westchester County – Motion to Dismiss Granted: Judge Lawrence H. Ecker granted defendant Keith Carpentier’s motion premised upon CPLR 3211(a)(7). The action sought recovery against him for an accident that occurred at a premises in which he had no interest in, or connection to. Plaintiff’s bald, conclusory assertions in the Third Amended Complaint were insufficient to defeat Carpentier’s motion which included the deposition testimony of co-defendant Schor. The Court found that plaintiff failed to submit any evidence that would contradict Schor’s sworn testimony. Accordingly, the Court found that Carpentier at no time exercised dominion, control or management of the premises from which liability could be attributed to him. Plaintiff failed to establish a material issue of fact that a cause of action exists, and the action was dismissed in its entirety against Carpentier. For more information on this matter, please contact Susan A. Romano, Esq.
Balija v. 450 Kent Avenue, et al., Supreme Court, Kings County – Motion for Summary Judgment on Labor Law sections 200, 240 and 241(6) Granted:
The Court granted defendant owner’s motion dismissing Labor Law sections 200, 241 and 241(6), and denying plaintiff’s motion seeking summary judgment on the Labor Law causes of action, dismissing the action in its entirety. Judge Genine D. Edwards in a 36 page decision, upheld the intent of the Labor Law and found that plaintiff’s act of replacing a ceiling tile constituted routine maintenance and was not entitled to the extraordinary protections of the Labor Law. Plaintiff, a building superintendent, was replacing a ceiling tile when he allegedly fell from a ladder. All parties moved for summary judgment on the Labor Law claims. The Court, correctly held that in the absence of construction, renovation or excavation activities, section 240 and 241(6), do not apply. Nevertheless, the Court continued, even if construction activities were ongoing at the time of the accident, plaintiff’s task in replacing a wet ceiling tile constituted routine maintenance, which is not a protected activity under the Labor Law. Finally, the Court dismissed the Labor Law section 200 and common law negligence claims holding that there was no evidence of a dangerous condition, that no party supervised or controlled the plaintiff’s work at the time of the incident, and no party owned or maintained the ladder.
Ramirez v. Town of Hempstead, Index # 12287/2014, Nassau County Supreme Court. Motion for Summary Judgment Granted by order of J. James P. McCormack, dated September 12, 2017, dismissing negligence and wrongful death claims brought against clients the Long Island Power Authority and its former servicing agent National Grid Energy Services. For further information.
French & Casey, LLP is proud to announce that two of its Attorneys, Douglas Rosenzweig and Devika Kapoor, have been selected as 2017 Super Lawyers Rising Stars in the New York City Metro Area. Congratulations to both!
Urcelay v. Empire State Dev. Corp. et al., Supreme Court, New York county, January 30, 2017– Motion for Summary Judgment granted by Judge Manuel J. Mendez, dismissing all claims asserted against Atlantic Hoisting & Scaffolding. The plaintiff was injured when he slipped and fell while descending a ramp built and installed by Atlantic. All testimony and evidence revealed that plaintiff fell due to a snow/ice condition on the ramp. Although Atlantic built and installed the ramp, and would have repaired the ramp upon notice from its customer, Tishman Construction Corp., there was no evidence submitted that the ramp was defective. Tishman and Enclos argued that the ramp was “worn” and “moldy”, and missing handrails. However, the Court agreed with Atlantic, that there was nothing more than speculation to support this allegation against Atlantic. Tishman’s own superintendent did not recall any issues or complaints about the ramp and did not recall ever notifying Atlantic to repair or replace the ramp or its components. While Atlantic would have returned to make repairs to the ramp, pursuant to the contract, this would have been done upon notification from Tishman. There was no evidence submitted that Atlantic was ever requested to repair or replace the ramp or that Atlantic failed to install handrails or removed the handrails on the ramp. In addition, the Court agreed that there was no evidence that an alleged worn condition of the ramp contributed to the accident.
Defense Verdict in Queens Supreme Court January 25, 2017 On Monday, January 23, 2017, we obtained a defense verdict for our clients in Klimowicz v. Powell Cove Associates LLC & AVR Realty Company, LLC. This was a Labor Law §240 action in which plaintiff, a bricklayer, claimed that he fell through a gap in scaffolding planking on June 20, 2008. During the trial plaintiff attempted to establish that he had fallen through the gap up to his shoulders, and as a result of this fall, he had injured his right shoulder which eventually required two (2) surgeries. He also claimed reduced strength and that his work, employment and life were severely hampered by the injury. Plaintiff’s demand was $1,000,000.00. During the trial we were able to use plaintiff’s early medical records to establish that he initially made complaints to a hospital one (1) month after the accident and subsequent visits to different doctors, as well as testimony at a workers’ compensation hearing on March 5, 2009, that he had injured his arm and shoulder while pulling planks or boards on a scaffold, that he had testified that he had not fallen, and that he had actually injured himself while pulling planks. In subsequent testimony at depositions, plaintiff testified that he injured himself while falling through the gap. Plaintiff called to the stand William Malletta, Ph.D., to establish that based upon his reading of the transcript, etc., his opinion was that if there was a gap in planking, this would indicate that improper protection was afforded to plaintiff and this was a violation of good safety practices. Following summations, and jury charge on the sole remaining claim of liability under Labor Law §240 (at the outset of the trial plaintiff discontinued his claims pleaded under Labor Law §§200 and 241(6)). The jury deliberated for three (3) hours before returning a defense verdict. Judge Diccia Pineda-Kirwan presided over the trial. For further inquiries, please contact Joseph A. French or Douglas Rosenzweig
Defense Verdict in Queens Supreme Court
Defense Verdict in Queens Supreme CourIn the matter of Rueda v. First Queens Management and Elmhurst Woodside, we obtained a defense verdict for the defendants in a trial presided over by Hon. Martin Ritholtz.Plaintiff, a manicurist in the Make Up Shop, a beauty salon in Jackson Heights, claimed she was struck by lighting fixtures on March 8, 2008 when parts of the Shop's ceiling collapsed. Plaintiff's expert , Stuart Sokoloff, established that the suspended ceiling, a major alteration, installed by the Shop in 2004 when it began leasing the premises , was installed without the proper building permits and without being designed by an architect or engineer. Plaintiff also argued the defendants , as the owner and manager of the property,did not supervise the construction of the drop ceiling, and did not abide by their lease obligations in assuring that the work was done properly and according to code. On behalf of the defendants, we argued that the work was only a minor , non- structural alteration that did not require the permits or professional input the plaintiff's argued were required. However, we also argued, primarily using plaintiff's co-workers who were called by plaintiff and then plaintiff's own cross examination, that although parts of the ceiling did fall, plaintiff herself was never struck by a lighting fixture because of where she was positioned in the Shop, and because the fixtures did not drop far enough down to have stuck plaintiff.The jury, after deliberating only 40 minutes, found that the defendants were negligent, but that this negligence was not a proximate cause of plaintiff's injuries. Plaintiff had alleged that since the incident, among numerous injury claims, she had undergone 3 separate surgeries, including a cervical fusion, and due to the incident she had unable to work or live her life pain free. Plaintiff's counsel had maintained a $5.0 million demand throughout the trial. For more information please contact Joe French or Fred McRoberts.
Second Department Affirms Dismissal of
Claims against French & Casey LLP’s Client for Over $4 Million
in Construction-Related Damages
On March 23, 2016, the Appellate Division, Second Department affirmed the Decision and Order issued by Judge Emily Pines, Suffolk County Supreme Court, dismissing claims by J. Petrocelli Contracting, Inc. (“JPC”) against The Morganti Group, Inc. (“Morganti”) for approximately $4.25 million in damages for alleged construction delays in connection with a renovation project for the Kings County Criminal Courthouse.
Although construction delay damage claims are usually decided on summary judgment or at trial, French & Casey attorneys moved the Suffolk County Supreme Court for a pre-answer dismissal pursuant to CPLR § 3211 (a)(7) among other bases. The motion argued the complaint should be dismissed, because JPC failed to make a prima facie showing that Morganti was responsible for any alleged delays in the construction project and as such failed to show that Morganti breached the contract with JPC or acted with negligence. Finding the complaint to be “conclusory”, Judge Pines granted the motion on April 4, 2014, dismissing all causes of action. See 2003 WL 8336789 (Apr. 14, 2013).
JPC appealed the dismissal of their breach of contract and gross negligence claims to the Second Department, Appellate Division, arguing primarily that the Supreme Court went against prevailing case law by deciding the claims prior to discovery. The Second Department disagreed, holding that the contract expressly precluded the type of damages sought by JPC, and that JPC “failed to allege any facts constituting willful misconduct or gross negligence on the part of [Morganti].
This Decision and Order can be found at J. Petrocelli Contracting, Inc. v. Morganti Group, Inc., 137 A.D.3d 1082, 27 N.Y.S.3d 646 (2d Dep’t 2016)
Mscichowski v. 601 BBA, LLC, Index No. 7397/2011, Appellate Division, Second Department.
Result: Lower court’s denial of summary judgment overturned by the Appellate Division. The Appellate Division, Second Department, overturned the lower court’s denial of third party defendant’s summary judgment motion in a trip and fall case. Defendant/Third party plaintiff, the landlord in the action, brought a third party suit against third party defendant/tenant.
Third party defendant/tenant moved for summary judgment arguing that they did not control the area where plaintiff fell, maintenance of which was the responsibility of the landlord. Plaintiff opposed the motion with speculative assertions that defendant/tenant could have created the subject defect. The lower court denied the summary judgment motion based on plaintiff’s speculation as to the cause of the defect and third party defendant/tenant appealed.
The Appellate Division unanimously reversed the lower court’s denial and granted third party defendant/tenant’s summary judgment motion, finding that there was no evidence that third party defendant/tenant created the subject defect and that they were not responsible for maintaining the area where plaintiff fell. For further information, please contact Jenna Elkind at email@example.com
In Hawxhurst v. The Doe Fund, Index No. 18769/2013, Plaintiff brought negligence claims alleging The Doe Fund failed to prevent an assault on him by another resident. The facts showed that an argument suddenly erupted between the two men, and properly stationed security guards quickly intervened. Further, at the time of the accident, The Doe Fund had abided by a strict security protocol to prevent weapons from entering the facility. Thus, on June 3, 2015, Justice Wavny Toussaint, Kings County Supreme Court, granted summary judgment in favor of The Doe Fund. Justice Toussaint agreed with French & Casey’s arguments that The Doe Fund discharged their duty to provide reasonable security at its shelter, and could not be held liable for the unforeseeable altercation at issue. For further information.
Crystal Ringer v. PC1-Bay Plaza, LLC, Prestige Properties & Development Co., Inc., et al. Supreme Court, New York County, Index No. 150482/2012. Result: Summary Judgment granted.
Justice Manuel Mendez granted the summary judgment motion filed by French & Casey on behalf of the property owner, property management company, and tenant in a slip and fall on ice case.
Plaintiff, Crystal Ringer, alleged to have slipped and fallen on ice in a parking lot of a shopping center. She testified that she did not see the ice before she fell, but did see large piles of shoveled snow at some distance away from her. Defendants were able to obtain summary judgment by showing that they did not create or exacerbate the ice condition, in that they themselves did not clear snow, but had a snow removal contractor clear snow at the property. They were also able to show that they did not have actual or constructive notice of the alleged defect by showing when the property was last inspected and that no complaints were received prior to the alleged incident.
J. Petrocelli Contracting, Inc. v. The Morganti Group. Inc.—Supreme Court, Suffolk County (No. 24643/2013)—Result: Motion to Dismiss Granted. In a decision dated April 4, 2014, Judge Emily Pines granted French & Casey’s pre-answer motion pursuant to CPLR § 3211 (a)(1) and (7), and dismissed all causes of action brought against our client The Morganti Group, Inc. (“Morganti”) by contractor J. Petrocelli Contracting, Inc. (“JPC”) arising out construction delays on the Kings County Criminal Courthouse renovation project. JPC asserted claims for breach of contract, breach of promissory estoppel, fraudulent inducement, and gross negligence and demanded $4.25 Million in damages. We successfully argued that JPC’s claims were precluded by a “no delay damages” clause contained in the governing contracts, and further that JPC failed to make a prima facie showing that Morganti engaged in any fraudulent or negligent conduct.
Selca v. Dutchess Heritage Sq. Partners, LLC 2014 NY Slip Op 01599 (App. Div., 2nd Dept.).
In a matter this office handled on behalf of the tenant, the Second Department recently affirmed the decision by Justice Sproat, Supreme Court, Dutchess County that dismissed the claims pleaded against the defendants. Plaintiff only appealed the dismissal of the Labor Law § 240(1) claim.
Plaintiff had contracted with Mall Complex’s owner to provide general maintenance services. While at the property one Sunday morning plaintiff testified that he heard a smoke alarm sounding in the tenant’s premises. He entered the premises, and without authority or permission, he removed an eight foot ladder from the tenant’s utility closet. He then placed it under the alarm, climbed on it, and subsequently fell while checking the ceiling-mounted smoke alarm. He had checked smoke alarms in the complex several times, and he testified that dust would occasionally build up on the alarm’s sensor heads.
The Supreme Court properly granted those branches of the defendants’ separate cross motions which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against each of them. Labor Law § 240(1) protects workers from elevation-related hazards while they are involved in the “erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure”. Thus, where a worker is engaged in routine maintenance, the statute is inapplicable. Here, the defendants established that the task that the injured plaintiff was engaged in at the time of this accident fell within the category of routine maintenance. The injured plaintiff’s work involved removing dust from the sensor head or a smoke detector, a task that he had performed on several prior occasions and that was part of his general maintenance duties.”
For obvious reasons, we believe this is a good decision. It is important to examine carefully the activity undertaken and to make the necessary inquiry into a plaintiff’s alleged Labor Law § 240(1) claim. Despite a fall from a ladder, exceptions do exist under Labor Law § 240(1) that coverage should not be automatically assumed.
Alcantara v. The State of New York, Claim No. 119075
Justice Thomas Scuccimarra, Court of Claims, recently decided the above-matter and issued the defense a verdict by dismissing the plaintiff’s claims. Plaintiff had been employed by Comunilife, Inc., a mental healthy residence licensed and regulated by the New York State Office of Mental Health. Plaintiff worked in buildings that were owned by the State of New York. Plaintiff alleged that while working one day and using stairs located outside her office and which led from the basement to the sidewalk, while she was walking up these stairs she fell through one step. When she fell through, she severely lacerated her leg which required numerous stitches and left a long scar on her leg. However, it was established that the plaintiff worked for Comunilife, that everyone using the stair, was a Comunilife employee, that people who maintained these stairs were Comunilife employees, and that people who inspected them and who were required to submit reports regarding them, including plaintiff herself, were Comunilife employees. The State, as part of an audit, examined the facility approximately one year earlier but this was more to establish that the building and its employees were in compliance with certain regulations.
We did not call any witnesses from the State and conceded that the State owned the property. Instead, we called several employees of Comunilife and cross-examined plaintiff and her own witness, all of whom established that the State was not responsible for the regular maintenance and inspection of a facility. Instead, the State’s, audit was for licensing purposes to ensure the proper operation of the program.
Plaintiff claims fell under a general theory of negligence and as well as the doctrine of res ipsa loquitor. She claimed that the State had a duty to maintain the exterior staircase in a reasonably safe condition and that it had both actual and constructive notice that the staircase was in a hazardous condition. We successfully argued that New York State was an out-of-possession landowner and did not owe plaintiff a duty of care as the responsibility for the care, custody and control of the premises remained with Comunilife. We also successfully argued that the State did not create the condition nor did it have notice of it nor did it fail to take any steps to cure the situation in a reasonable period of time. We pointed out that the plaintiff did not establish any statute or regulation that the State’s duty to claimant was “manifest”. Instead, we established that Comunilife had made itself responsible for the care, custody and control of the premises. The Court rejected the res ipsa loquitor theory of liability.
Thus, the court determined that the plaintiff had failed to establish by a preponderance of credible evidence that the State was liable for her fall and injury. Plaintiff did not establish that the State had notice of any dangerous condition with the exterior staircase. Instead, it found that the evidence pointed to the failure of Comunilife as well as plaintiff herself to alert both the central office and the State to any dangerous condition on the staircase. Thus, “while it is unfortunate that claimant fell, the State of New York was never put in a position to have notice of any defect upon its property because those in the best position to provide such notice failed to do so.” Accordingly, plaintiff’s claim was dismissed.
Coleman-Yarborough v. Betances Community Center, Inc. et al., Supreme Court, Bronx County—Justice Julia I. Rodriguez. Result: Summary Judgment. In a decision dated February 24, 2014, Justice Rodriguez granted French & Casey, LLP’s motion for summary judgment dismissing all claims brought against our clients. The plaintiffs, an enrollee in our client’s after-school program and her mother, claimed that the child sustained an ankle fracture when another student collided into her during their annual ice-skating trip. Plaintiffs argued that our clients knew that the other student suffered from severe visual impairment, and thus were negligent in allowing that student to ice-skate without her glasses. We established that plaintiffs’ “impaired vision” theory of liability was purely speculative and likely created for the purpose of litigation. Although the plaintiffs submitted several affidavits containing hearsay in support of their position, we countered with admissible evidence. We successfully argued that the sudden collision between the two students was not a foreseeable event such that our clients could have prevented it. Further, we argued that, as a matter of law, our clients could not be held liable under these circumstances when they met their duty of care by implementing appropriate safety measures. Justice Rodriguez agreed with each of our points and dismissed the case.
Gilles v. The City of New York et al. Supreme Court, Kings County. Result: Summary judgment awarded by Judge Johnny Lee Baynes, in a case where the client did not erect or install a ramp at Kings County Hospital. Evidence demonstrated that the ramp may have been a permanent structure at the Hospital. All claims against the client, Safway Services, were dismissed in their entirety. For more information, please contact Susan A. Romano at firstname.lastname@example.org
Julia Riccio v. Little Gym of Scarsdale. Supreme Court, Westchester County--Judge Mary H. Smith. Result: Summary Judgment. In a decision dated December 9, 2013, Judge Smith granted our client's motion for summary judgment dismissing all claims pleaded against it. Plaintiff claimed various instances of negligence against our client arising out of burn injuries sustained while she was helping clean-up after her grandson’s party at our client’s gym. Specifically, plaintiff claimed that she was burned by a lit sterno while attempting to carry a food tray with attached lit sterno to the sink because the sterno caps were missing. We were able to successfully argue that our client was not liable for plaintiff’s injuries because plaintiff primarily assumed the known risks inherent in carrying an open flame close to one’s body and plaintiff failed to establish any evidence that any actions or inactions by our clients were a proximate cause of plaintiff’s claimed injuries. The court held that any alleged negligence, at best, merely furnished the occasion for plaintiff’s injury. Instead, plaintiff was the sole proximate cause of her injuries through her imprudent and voluntary action of carrying the lit sterno close to her body. For more information, please contact Tara L. Bhupathi at TBhupathi@frenchcasey.com
Zappavigna v. The City of New York et.al. Supreme Court, Queens County--Judge Phyllis Orlikoff Flug. Result: Summary Judgment. In a decision dated December 10, 2013, Judge Flug granted our client's motion for summary judgment dismissing all claims and cross-claims pleaded against it. The accident arose from a trip and fall on a sidewalk near a railroad overpass. We were able to succesfully argue that our client did not own, operate, maintain or repair the sidewalk in question despite the fact that it did utlize the railroad overpass in question. In the absence of any common-law or contractual responsiblity to maintain the sidewalk, the Court ruled that our client owed no duty to plaintiff and thus was not liable for any injuries sustained. For more information, please contact Douglas R. Rosenzweig at DRosenzweig@frenchcasey.com.
Pee Wee Molding Corp. v. Valentin, et. al., New Jersey Superior Court, Middlesex County—Judge Heidi Willis Currier. Result: Summary Judgment. In a decision dated October 16, 2013, Judge Currier granted our client's motion for summary judgment dismissing all claims and cross-claims against her. Plaintiff had alleged that the defendant breached her alleged employment contract by both failing to train her replacement and by either intentionally or negligently withholding information regarding the profitability of the company. The defendant was employed as a bookkeeper for the company for several years. Ultimately, the Court agreed with the defendant that she was an at-will employee not subject to any contractual terms of employment. Additionally, she did not enter into an oral employment agreement to guarantee the profitability of the company by virtue of her position as a bookkeeper. Therefore, summary judgment was granted and the defendant was dismissed from the case with prejudice. For more information, please contact Karen M. Mahon at email@example.com
Laurie Knell v. Gold Medal Gymnastics Center, et. al., Supreme Court, Suffolk County--Justice W. Gerard Asher. Result: Summary Judgment. In a decision dated October 15, 2013, Justice Asher granted our client's motion for summary judgment dismissing all claims and cross-claims against same. Plaintiff had alleged that she was injured when she slipped and fell while attending a birthday party at our client’s gymnastics center. Specifically, the plaintiff claimed that she slipped and fell in a wet sticky soda substance on the floor of the party room during the snack portion of the birthday party. We were able to successfully argue that plaintiff failed to raise a triable issue of fact as to whether our client caused, created or had actual or constructive notice of the alleged hazard. For more information, please contact Tara Bhupathi at firstname.lastname@example.org.
Rajkumar v. Markham Gardens, L.P., Supreme Court, Kings County--Justice Jack M. Battaglia. Result: Summary Judgment. In a decision dated October 1, 2013, Justice Battaglia granted our client's motion for summary judgment dismissing plaintiff’s 240(1) claim and 261(6) claim based on 12 NYCRR § 23-1.7(e). Plaintiff alleged that he was injured while he and his co-workers were in the process of erecting balconies. At the time of the accident, plaintiff was standing outside on top of construction debris, holding a 200 pound and 16 feet long channel iron over his head in an attempt to pass the channel iron to his co-worker on a scaffold nine (9) feet above the ground. Plaintiff claimed that, while holding the channel iron, his foot slipped on debris, causing him to fall and the beam to fall on top of him. We were able to successfully argue that (1) there was no physically significant height differential between the beam and plaintiff as he was holding the beam inches above his shoulder and that (2) the imputes of the beam falling was plaintiff slipping on debris, not a direct consequence of gravity operating on the beam. Accordingly, the Court dismissed plaintiff’s 240(1) claim, holding that the alleged accident is not within the narrow confines of the strict liability statute. The Court dismissed plaintiff’s 261(6) claim based on 12 NYCRR § 23-1.7(e) because the regulation deals with tripping hazards as opposed to plaintiff’s alleged slipping accident. For more information, please contact Douglas R. Rosenzweig at DRosenzweig@frenchcasey.com.
Rose Marie Davis v. City of New York, et. al., Supreme Court, Bronx County--Justice Larry S. Schachner. Result: Summary Judgment. In a decision dated September 20, 2013, Justice Schachner granted our client's motion for summary judgment dismissing all claims and cross-claims against same. Plaintiff had alleged that she was injured when she trip and fell while walking to a bus stop. Specifically, the plaintiff claimed that a defect in the sidewalk caused her to fall. Prior to our client’s involvement in the case, the City of New York conducted the plaintiff’s 50-h wherein the plaintiff testified that the metal curb caused her to fall, not the sidewalk. We were able to successfully argue that, pursuant to NYC Admin. Code 7-210, the abutting landowner and/or tenant is not responsible for curb defects. The Court agreed that the plaintiff’s sworn testimony implicated the curb. Therefore, summary judgment was granted pre-discovery and depositions. For more information, please contact Karen M. Mahon at email@example.com.
Gregg R. Platkin v. Stroller Strides, LLC, et. al., Supreme Court, Nassau County--Justice Thomas P. Phelan. Result: Summary Judgment. In a decision dated June 20, 2013, Justice Phelan granted our client's motion for summary judgment dismissing all claims and cross-claims against same. Plaintiff had alleged that he was injured while a participant in a Stroller Strides class, which was conducted at the roller rink within Cedar Creek Park. Specifically, the plaintiff claimed that a defect in the pavement of the roller rink caused him to fall and fracture his ankle. We were able to successfully argue that, as a permit user of the park, the defendant did not owe a duty to the plaintiff to maintain, repair or keep the premises otherwise known as Cedar Creek Park in a reasonably safe condition. The Court held that the defendant neither had exclusive access to nor the ability to exercise control over the area where the plaintiff fell. Therefore, liability could not attach. For more information, please contact Karen M. Mahon at firstname.lastname@example.org.
Folch v. 311 Systems, Inc. et.al, Supreme Court, New York County--Justice Geoffrey Wright. Result: Summary Judgment. In a decision dated March 6, 2013, Justice Wright granted our client's motion for summary judgment dimissing the third-party complaint in its entirety. Plaintiff was in a motor vehicle accident and the driver which impacted the taxi in which she was riding claimed that a construction worker had waived her through the intersection. We were able to show through admissible evidence that even though our client was performing work in the area of the accident, there was no credible evidence that the worker was employed by our client. The Court agreed that there was no sufficient, specific evidence tying our client to the accident and dismissed the third-party complaint. For more information, please contact Douglas Rosenzweig at email@example.com.
Serina Inversa v. Champs Gymnastics Corp. d/b/a Gold Medal Gymnastics Center, et. al., Supreme Court, Suffolk County--Justice Jerry Garguilo. Result: Summary Judgment. In a decision dated February 22, 2013, Justice Garguilo granted our clients’ motion for summary judgment dismissing all claims pleaded against them. The plaintiff claimed that she was injured while performing gymnastics exercises in our clients’ gym. Plaintiff alleged that our clients were negligent in failing to ensure her safety during her gymnastics exercises and in failing to provide proper supervision. The Court found that our clients had met their prima facie burden for summary judgment by demonstrating that they did not create or have actual or constructive notice of a dangerous condition on the subject tumble tracks. In addition, the Court agreed with our argument that plaintiff failed to establish that a defective condition existed; instead plaintiff failed to substantiate her speculatory claim that the placement of mats on the track would create a defect. Moreover, the Court found that our clients established that plaintiff voluntarily assumed the risk of injury to her knee, a risk inherent in gymnastics. Consequently, all claims against our client were dismissed. For more information, please contact Barry Meade at BMeade@frenchcasey.com.
Richard Smoot v. George W. Lewis Housing Associates, L.P. et. al., Supreme Court, New York County--Justice Eileen A. Rakower. Result: Summary Judgment. In a decision dated February 4, 2013, Justice Rakower granted our clients’ motion for summary judgment dismissing all claims plead against them. The plaintiff claimed that he was injured when he fell into a manhole on the sidewalk abutting our clients’ property. Plaintiff alleged that our client was negligent in violating Administrative Code of the City of New York § 7-210(c), breaching its duty to maintain the sidewalk abutting its property. We were able to show through admissible evidence that plaintiff failed to offer evidence that the alleged hazard was on the sidewalk abutting our clients’ property or that any accident occurred on the sidewalk abutting our clients’ property. The Court found that our clients had met their prima facie burden for summary judgment and that no party raised a question of fact sufficient to defeat the motion. Consequently, all claims against our client were dismissed. For more information, please contact Joseph A. French at JFrench@frenchcasey.com.
Ryan Nieves et al v. City of New York, et.al., Supreme Court, Kings County--Justice Bert Bunyan. Result: Summary Judgment. In a decision dated February 6, 2013, Justice Bunyan granted our clients’ motion for summary judgment dismissing all claims plead against them. The infant plaintiff had claimed that he was injured when he fell from monkey bars at a City of New York park, while attending a summer program directed by the non-profit organization Groundwork, Inc. Plaintiff alleged that he was not properly supervised and that the matting at the park was substandard. However, prior to participating in the summer program, plaintiff’s mother had executed a waiver of liability, waiving plaintiff’s right to sue if he was injured during the program by the defendants’ alleged negligence. We were able to show through admissible evidence that the waiver was valid, did not violate public policy and that plaintiff was not under duress when she executed the waiver. The Court found that our clients had met their prima facie burden for summary judgment and that no party raised a question of fact sufficient to defeat the motion. Consequently, all claims against our client were dismissed. For more information, please contact Lance E. Benowitz at LBenowitz@frenchcasey.com.
Luz Rueda v. The Make Up Shop, et. al., Supreme Court, Queens County--Justice Duane A. Hart. Result: Summary Judgment. In a decision dated October 26, 2012, Justice Hart granted our client's motion for summary judgment based upon Section 11 and 29 of the Workers’ Compensation Law dismissing all claims and cross-claims for indemnification pleaded against The Make Up Shop. Plaintiff had alleged that she was injured by a falling drop ceiling, while working as a manicurist, at The Make Up Shop. The plaintiff sought and received workers’ compensation benefits, although it was later determined that the policy from which the plaintiff was benefitting was not her employer’s policy. We were able to successfully argue that the Workers’ Compensation Board has primary jurisdiction for determining whether and from what policy a claimant is entitled to collect benefits. Once that decision is rendered, it has long been established that due to the doctrine of collateral estoppel, the plaintiff and other parties are bound by the Workers’ Compensation Board’s decisions in subsequent personal injury actions. Thus, having chosen her exclusive remedy, pursuant to Section 11 of the Workers’ Compensation Law, the plaintiff is barred from pursuing a personal injury action against her employer. The Court reasoned that, although because of a series of happenstances, plaintiff was granted and accepted workers’ compensation benefits awarded by the Workers’ Compensation Board, the fact that she received benefits from a policy that was not issued to her employer does not negate the fact that she received them. The statute does not make any exceptions as to how benefits are obtained if the Board determines that the award is warranted and if the insurer, as here, fails to act to prevent paying when it is not legally required to do so. Receipt of the award puts the plaintiff outside the exception that arises when an employer does not have workers’ compensation insurance. Consequently, all direct claims against our client were dismissed. For more information, please contact Karen M. benefitting was not her employer’s policy. We were able to successfully argue that the Workers’ Compensation Board has primary jurisdiction for determining whether and from what policy a claimant is entitled to collect benefits. Once that decision is rendered, it has long been established that due to the doctrine of collateral estoppel, the plaintiff and other parties are bound by the Workers’ Compensation Board’s decisions in subsequent personal injury actions. Thus, having chosen her exclusive remedy, pursuant to Section 11 of the Workers’ Compensation Law, the plaintiff is barred from pursuing a personal injury action against her employer. The Court reasoned that, although because of a series of happenstances, plaintiff was granted and accepted workers’ compensation benefits awarded by the Workers’ Compensation Board, the fact that she received benefits from a policy that was not issued to her employer does not negate the fact that she received them. The statute does not make any exceptions as to how benefits are obtained if the Board determines that the award is warranted and if the insurer, as here, fails to act to prevent paying when it is not legally required to do so. Receipt of the award puts the plaintiff outside the exception that arises when an employer does not have workers’ compensation insurance. Consequently, all direct claims against our client were dismissed. For more information, please contact Karen M. Mahon at firstname.lastname@example.org.
Turnbull v. First Prize Paintball: Following an arbitration in Albany, New York, the Hon. Patrick D. Monserrate (ret’d) ruled for our client, the defendant in David Turnbull v. First Prize Paintball LLC Monserrate (ret’d) ruled for our client, the defendant in David Turnbull v. First Prize Paintball LLC dismissing all claims brought against the defendant. Plaintiff had continuously presented a very high demand, and this persisted through an unsuccessful mediation in August 2012. On the eve of trial in September 2012, the parties consented to an arbitration. With a high-low agreement in place, the arbitration was held in late October 2012. The incident occurred when plaintiff arranged to play paintball with two co-workers at the defendant’s field. He had played paintball for the first time several weeks earlier at the defendant’s field and because he enjoyed the experience and planned on continuing to play, he bought a new paintball marker. Plaintiff also conceded that when he played at the facility, he made no complaints about any of the fields, or conditions at the facility, including the nets separating five playing fields located at the facility from each other and from the general rest area outside the playing fields. Before playing with his co-workers he admitted at the arbitration that he had never read the safety manual that accompanied his purchase of the new paintball marker.On the day in question, and after playing several games with his co-workers, plaintiff took a break and stood in the rest area where paintball masks did not have to be worn. He held his new marker in his right hand and his face mask had been removed. Suddenly a paintball was shot into his right eye. Although denying that he shot himself, plaintiff offered no other explanation as to how he was shot, other than to speculate that a shot had come from some unidentified field fired by an unidentified player, and then passed through an alleged unspecified hole or allegedly defective entrance in an unidentified net surrounding the playing fields. Plaintiff lost near total vision in his right eye, a point established by his surgeon and corroborated by the defendant’s ophthalmologist. Similarly, the defense vocational rehabilitation expert agreed with plaintiff’s vocational rehabilitation expert regarding the impact the injury would have on plaintiff’s life and his future earnings potential. At the arbitration, plaintiff and his liability expert testified, but not the co-workers who had previously been deposed. The defendant owner, the defendant’s liability expert, and two non-party witnesses who were in the rest area when the plaintiff was shot, testified for the defense. According to the arbitrator, most damaging to plaintiff’s case was the testimony of his expert (“So complete was the destruction of the witness’s credibility . . .”), along with plaintiff’s failure to establish how he was shot given his position in the rest area relative to the fields and surrounding nets that he could not prove were defective when he was shot. The defense maintained that these failures pointed to plaintiff himself being the inadvertent shooter. One defense witness testifies that immediately before he was shot, plaintiff had not secured the barrel bag over the end of the barrel. The barrel bag was also missing when, several minutes after the first shot, a second shot was blasted from plaintiff’s marker when plaintiff grabbed it as it was returned to him. The arbitrator also found convincing the testimony of a non-party witness present in the rest area. The witness had previously played in hundreds of games and as a result, he was quite familiar with the sounds created when a shot was fired. This man stood about 15 feet away from plaintiff and when he heard the unusually loud “pop” from directly behind him he immediately turned and saw plaintiff “clutching his face”. The witness opined that plaintiff had shot himself. As a result of the above and other points, Judge Monserrate concluded that plaintiff had “failed to sustain his burden of proving, by a fair preponderance of the credible evidence, that any negligent conduct of the defendant caused or contributed to his injury, and therefore his claim should be dismissed.” For more information, please contact Josseph Frenchat Monserrate concluded that plaintiff had “failed to sustain his burden of proving, by a fair preponderance of the credible evidence, that any negligent conduct of the defendant caused or contributed to his injury, and therefore his claim should be dismissed.” For more information, please contact Josseph Frenchat email@example.com.
Carmello Sanchez v. Lincoln Center For the Performing Arts, et.al., Supreme Court, Queens County--Justice Valerie Brathwaite-Nelson. Result:Brathwaite-Nelson. Result: Summary Judgment. In a decision dated October 10, 2012, Justice Brathwaite-Nelson granted our client's motion for summary judgment dismissing all claims and cross-claims pleaded against it. Plaintiff had claimed that he tripped over a fork lift attachment allegedly placed on the sidewalk near his work zone. We were able to show through admissible evidence that the forklift in question was not owned, leased or dispatched to the jobsite by our client, a well-known demolition contractor. We were also able to demonstrate that our client was performing no work in the job area. The Court found that our client had met it Brathwaite-Nelson granted our client's motion for summary judgment dismissing all claims and cross-claims pleaded against it. Plaintiff had claimed that he tripped over a fork lift attachment allegedly placed on the sidewalk near his work zone. We were able to show through admissible evidence that the forklift in question was not owned, leased or dispatched to the jobsite by our client, a well-known demolition contractor. We were also able to demonstrate that our client was performing no work in the job area. The Court found that our client had met it prima facie burden for summary judgment and that no party raised a question of fact sufficient to defeat the motion. Consequently, all claims against our client were dismissed. For more information, please contact Douglas Rosenzweig at Drosenzweig@frenchcasey.com.
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 firstname.lastname@example.org.
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 email@example.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 firstname.lastname@example.org.
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 email@example.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 firstname.lastname@example.org.
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 email@example.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 firstname.lastname@example.org.
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 email@example.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 firstname.lastname@example.org.
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 email@example.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 firstname.lastname@example.org.
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.
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 email@example.com.
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 firstname.lastname@example.org.
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 email@example.com.
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.
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 firstname.lastname@example.org or Lance E. Benowitz at email@example.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 firstname.lastname@example.org.
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 email@example.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 firstname.lastname@example.org.
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 email@example.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 firstname.lastname@example.org.
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 email@example.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 firstname.lastname@example.org
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 email@example.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 firstname.lastname@example.org.
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 email@example.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 firstname.lastname@example.org.
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 email@example.com or firstname.lastname@example.org.
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 email@example.com or firstname.lastname@example.org.
Oleg Ivanovv. 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 email@example.com.