Family Of Fallen Firefighter Brings Suit For Fire At Deutsche Bank Building

Barbara Beddia Crocco, the sister of Robert Beddia, one of the two firefighters killed in the former Deutsche Bank building in lower Manhattan last August commenced a lawsuit against the building owner, the Lower Manhattan Development Corporation, and several contracting companies that worked on site. The claims are that the defendants created or were aware of the dangerous conditions that existed in the building, including dismantled fire connections, that caused the death of Mr. Beddia. Notably, Ms. Crocco did not sue the City of New York of The Fire Department of New York.

http://www.nytimes.com/2008/02/14/nyregion/14deutsche.html?_r=1&ref=nyregion&oref=slogin

Plumbing Roughing, Roughs Up Electrician And Triggers Labor Law §240(1) Liability

In Cohen v. Memorial Sloan-Kettering Cancer Center, 2008 NY Slip Op 01025, AD and New York Co. Index 110800/05, Edward Cohen, plaintiff, alleged to have sustained injury to his left knee when his left foot became ensnared between the second rung of his ladder and a nearby metal rod jutting from a wall, ultimately causing him to fall to the ground. Plaintiffs cross moved for summary judgment on their Labor Law §240(1) claim, asserting that although the ladder was not defective and allowed him to complete the task at hand, it was inadequate since it did not permit him to safely step down one rung at a time to the ground. While the trial court granted defendants’ motion for summary judgment on the Labor Law §241(6) claim, it denied plaintiffs’ cross motion.

The Appellate Division – First Department, in a 3-2 decision, modified the lower court’s decision and granted plaintiffs’ cross motion since the unrefuted evidence showed that plaintiff’s fall was proximately caused by his inability to descend to the floor due to the absence of a sufficient safety device. The dissent adhered to the Court of Appeals holdings in Nieves v. Five Boro A.C. & Refrig. Corp., 93 NY 2d 914 (1999) and Melber v. 6333 Main St., 91 NY2d 759 (1998) and deemed the hazard at issue wholly unrelated to the elevated risk covered by Labor Law §240(1) and that the safety equipment provided by defendants to be adequate.

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_01025.htm

34-Day Delay In Disclaiming Deemed Unreasonable As A Matter Of Law

In Sirius America Insurance Company et al v. Vigo Construction Corp., Martin Gonzalez and East Wind Contracting, Inc., 2008 NY Slip Op 01134, AD Index 2006-07895, Queens Co. Index 3209/05, the trial court denied all motions, including the cross motion for summary judgment by Martin Gonzalez seeking a declaration that Sirius American Insurance Company was required to defend and indemnify Vigo Construction Corp., in the underlying action, Martin Gonzalez v. Vigo Contruction Corp., as well as the motion by Sirius, seeking a declaration it was not obligated to defend and indemnify Vigo in the underlying matter.

In reversing the lower court, the Appellate Division – Second Department, cited Insurance Law §3420 which requires an insurer to provide a written disclaimer “as soon as is reasonably possible.” The Appellate Division further held that any written disclaimer is measured from the time when the insurer has sufficient knowledge of facts entitling it to disclaim, or know that it will disclaim. Here, the Court found Sirius sent a disclaimer 34 days after it knew or should have known the basis for denying coverage. Apparently without explanation for this delay by Sirius, the Appellate Division found the 34-day delay to be unreasonable as a matter of law.

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_01134.htm

No Arbitrary AIDS-Phobia Cutoff In New York

The New York Court of Appeals ruled that a plaintiff exposed to AIDS is no longer limited to receiving damages for only six months of emotional distress. By way of background, an appellate division case had reasoned that a 6 month limit was reasonable since that is the period it customarily takes to determine whether an exposed person will actually develop HIV/AIDS. However, in Orstein, the court ruled that the emotional damage caused by the negligent exposure to the virus can cause emotional damage well beyond a six month period.

http://www.nycourts.gov/ctapps/decisions/feb08/12opn08.pdf

Plaintiff Scalded By Hot Water, Burned A Second Time By The Appellate Division

In LaTronica v. F.N.G. Realty Corp et al, 2008 NY Slip Op 00574, AD and Bronx Co. Index 21942/04, plaintiff alleged to have sustained second and third degree burns due to scalding water emitting from the cold water faucet of defendants’ building. However, at his deposition, plaintiff complained that the water out of the hot faucet was “too warm” and not that hot water came out of the cold faucet. Despite this, the trial court denied defendants’ motion for summary judgment.

For a myriad of reasons, the Appellate Division – First Department reversed, holding that plaintiff failed to establish defendants’ notice of this condition, plaintiff’s expert opinion was without probative value, plaintiff relied upon Department of Buildings’ violations that were too remote and unrelated, plaintiff’s action of putting his feet in the water after checking the temperature was a superseding event and that the legal doctrine of res ipsa loquitur did not apply.

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_00574.htm

NJ Lawyer Jailed for Using Runners in Fraudulent Auto Cases

A 71 year-old lawyer received a three-year jail sentence for using “runners” to solicit fraudulent personal injury claims.

His attorney argued that his client was “careless” but likened his actions to the us of an on-line subscription referral service.

Apparently, the Court took a different view.

http://www.law.com/jsp/article.jsp?id=1202297435164&pos=ataglance#

Labor Law 240

An appellate court in NY in Cohen v. Memorial Sloan-Kettering Cancer Center has granted summary judgment to a plaintiff on Labor Law 240 even though the ladder he was using was not defective. The plaintiff was using a 6-foot, A-frame ladder. A rod sticking out of a wall blocked his access to the lowest rung so that as he descended the ladder he needed to step from the second rung to the floor. In doing so, he caught his foot on the rod and fell to the floor, injuring his knee. The court ruled 3-2 that the ladder – while not defective – did not provide the plaintiff with proper protection because it did not sufficiently allow the plaintiff to safely complete his job and descend the ladder.

Water Water Everywhere, But Not A Drop For Georgia

In a victory for Alabama and Florida, the United States Court of Appeals – District of Columbia Circuit held that Georgia’s agreement with the Army Corps of Engineers to siphon nearly a quarter of the water of Lake Sidney Lanier reservoir was void since the plan was not approved by Congress. Under Federal Law, Congressional approval is needed for “major structural or operational” changes to the management of its federal reservoirs.

http://www.nytimes.com/2008/02/06/us/06water.html

Seeing Dollar Signs, A Man Delivers Previously Stolen Warhol Painting To Christie’s To Sell

After allegedly buying Andy Warhol’s 1981 Dollar Sign painting at a New Jersey flea market for $180, Jason Beltrez brought the painting to Christie’s auction house to sell. Christie’s checked with the Art Loss Register and determined the painting had been stolen from Martin Lawrence Galleries in SoHo on February 14, 1998. The battle now begins as the art gallery is suing Mr. Beltrez for ownership.

http://www.nytimes.com/2008/02/06/nyregion/06warhol.html?_r=1&scp=2&sq=warhol&st=nyt&oref=slogin

Passenger Has No Duty To Stop Intoxicated Driver From Driving His Own Car

On January 31, 2008, the New Jersey Appellate Division approved for publication the opinion in Champion v. Dunfee A-3167-06T2. The Court held that a guest passenger who did not own nor control the car, and had no special relationship to and had not encouraged the tortfeasors wrongful behavior, owed no duty to a fellow passenger to prevent a visibly intoxicated driver from driving his own car.

http://www.judiciary.state.nj.us/opinions/a3167-06.pdf