Labor Law §240 Claim Dismissed In Case Involving Falling Object

In Marin v. AP-Amsterdam 1661 Park, LLC, the plaintiff was installing a drainpipe on the exterior of an apartment building when a metal bracket dislodged, fell and struck him on the head. The Second Department affirmed summary judgment dismissing the plaintiff’s Labor Law §240 claim and denied the plaintiff’s cross motion for summary judgment. The court held that the metal bracket was part of the building’s permanent structure and did not require securing. Moreover, the plaintiff failed to show that the bracket fell because of the absence or inadequacy of the kind of safety device enumerated in the statute.

Thanks to Bill Kirrane for his contribution to this submission.

Residential Exception to Sidewalk Law Tested

Section 7-210 of the Administrative Code of the City of New York (the New Sidewalk Law), states that the owner of real property is liable for any injury to property or personal injury that is caused by the failure of the owner to maintain the sidewalk in a reasonably safe condition. This section contains an exemption for one, two, or three-family residential real property that is (1) in whole or part, owner occupied, and (2) used exclusively for residential purposes.

In Story v. The City of New York, this exemption’s scope was tested. Plaintiff Wilma Story allegedly was injured as a result of a trip and fall accident in front of a building in Brooklyn. This property was owned by Morris and Judith Lowinger and had been used as their place of residence as sole occupants for the past 40 years. The property, however, had a sign on it for their son’s law practice and Equinox Company. The Lowingers moved for summary judgment in the action asserting the exemption to Section 7-210. In deposition testimony, undisputed by the plaintiff or co-defendants, the son stated that he used his parent’s address simply as a mail drop and official listing and conducted no business there.

The Supreme Court, Kings County, finding for the Lowingers, held that the purpose of the New Sidewalk Law would be subverted if the exemption did not apply to the defendants because there was no business use other than a mail listing and a sign.

Thanks to Michael Monteith for his contribution to this post.

Specificity and Clarity Required in Big Apple Maps

In 1982, plaintiffs’ tort lawyers created Big Apple Pothole & Sidewalk Protection Committee to keep track of sidewalk defects in the five boroughs. The company periodically files “Big Apple maps” with the City of New York in an attempt to provide the city with the legally required notice of sidewalk, curb and crosswalk defects necessary to sustain negligence claims.

In two recent cases that reached the Court of Appeals, the Court ruled that the symbols on Big Apple maps must be clear in their representation of the defect and the plaintiff’s case must show that the fall was caused by that particular defect.

In D’Onofrio v. City of New York, the symbol of a raised sidewalk was clear, but the plaintiff claimed that he fell on a grate or broken concrete. Since there was no evidence of an uneven sidewalk on the map, the Court rejected the jury verdict in favor of the plaintiff and dismissed the case as a matter of law.

In the companion case of Shaperonovitch v. City of New York, the plaintiff alleged a fall on a raised sidewalk. The Court found the symbol at that location was ambiguous and did not indicate an elevation. The Court rejected the jury verdict in favor of the plaintiff.

Thanks to Robin Green for her contribution to this post.

NJ Reinforces Litgation Privilege and Dismisses Action Against Attorney

Litigation can be a contact sport. It is not for the meek or mild, certainly in emotionally charged or high exposure cases. While the line between permissble probing and abusive litigation tactics can blur, the New Jersey Appellate Division recently made clear that the nature and scope of inquiry during a deposition will rarely support a claim against an attorney for the intentional infliction of emotional distress, outrage and the like.

In Rabinowitz v. Wahrenberger, the parents of an infant filed a medical malpractice action against a hospital and emergency room physician for the death of their child. The parents claimed that the physician refused to admit their infant who later died at home of respiratory distress. The father summoned the local police and asked to speak to the chief of police because “he suspected that there had been a murder.” During his deposition, the defense lawyer probed the basis for the father’s reference to murder: did he refer to the hospital, the child’s nanny, baby nurse or possibly mother? Had anyone handled the baby roughly in the past? When the questioning continued, the plaintiff’s lawyer interrupted and said “if you ask one question that is suggestive of the garbage I just heard from your mouth, this deposition will end.” The following month, the plaintiff’s attorney on behalf of the parents filed the above mentioned action against the defense lawyer.

The trial court dismissed the parents’ action and awarded costs and sanctions against plaintiffs and their attorney. On appeal, the Appellate Division discussed the wide scope of New Jersey’s litgation privilege. The decision made clear that the privlege is applicable to communications made during judicial proceedings, pretrial investigation and now discovery depositions.

Good judgment should guide the scope of discovery on the part of all attorneys. However, it is our professional duty, at times, to ask unccomfortable questions during the course of the zealous representation of our clients. It is reassuring to know that we do not subject ourselves to personal liability because we ask the tough questions.

Late Notice

In Sorbara Construction Corp. v. AIU Ins. Co., an insured’s employee was injured on the job and filed a claim with the workers comp carrier. The same carrier wrote the insured’s liability policy. The insured did not give notice under its liability policy until five years after the loss, when the insured was impleaded into the case. The court ruled that notice under the liability policy was late and the carrier had no obligation to defend or indemnify its insured. The fact that the carrier had timely notice of the loss under the workers comp policy did not change this result.

Posted by Jung Lee.

“To My Knowledge” Deemed Superfluous By The Second Circuit

Often during depositions, the attorney defending the deposition will interrupt an answer with the phrase “if you know,” meaning that the witness should only answer the question if the witness has personal knowledge. An answer to a deposition question, or a statement in an affidavit, stating “to my knowledge” has the same meaning, according to a recent decision by the U.S. Court of Appeals for the Second Circuit.

In SCR Joint Venture, LP v. Warshawsky, the question was whether certain debts had been paid in full. The statement “to my knowledge” the creditor had not been paid in full was the same as “I know that” the creditor was not paid. The “to my knowledge” language was redundant.

Breach of Contract Supports Negligence Claim

In Munsch v. 205-209 East 57th Street Associates, LLC, a gemeral contractor hired an electrical contractor to install temporary lighting at a job site. The plaintiff, who worked at the site for another subcontractor, tripped on wood scraps or electrical debris because, he said, no lighting had been installed. He sued the electrician for negligence. The court ruled that the plaintiff was within his rights to assert such a negligence claim based upon the electrician’s alleged breach of the electrician’s contract with the general contractor.

Posted by Maju Varghese.

Health Insurer’s Subrogation Right Survives in New York

As medical costs continue to rise, the health insurer’s role in personal injury actions is certain to increase. In Fasso v. Doerr, the health insurer intervened in a medical malpractice action to recoup the $780,000 it had paid for plaintiff’s medical bills. The Court of Appeals held that a settlement below plaintiff’s claimed damages did not extinguish the health care carrier’s subrogation claim because there was still available insurance coverage. Further, an agreement between the tortfeasor and injured party cannot extinguish the health carrier’s claim without it consent.

Failure to Cite Suit Limitation Clause not Fatal in PA

A recent appellate decision in Pennsylvania reiterated that an insurer’s failure to cite a certain policy provision in a declination letter does not necessarily act as a waiver of that provision or estop the insurer from later asserting rights under that provision. Prime Medica Associates v. Valley Forge Ins. Co., involved a suit limitation clause which required the insured to bring legal action against the insurer within two years after the date of loss.

The insured contended that the insurer failed to reference the policy’s suit limitations clause as further grounds to deny coverage for a claim of property loss and that the failure acted as a waiver of the clause and the insurer was estopped from enforcing that policy provision.

The Superior Court disagreed, holding that mere failure to raise the provision did not act as a waiver absent any action by the insurer to induce the insured to believe he was not subject to the limitations period. Furthermore, the insurer was not estopped from asserting the suit limitations provision because the failure to cite the relevant policy provision was not a promise by the insurer and was not sufficient grounds for the insured to rely on not having to comply with the policy provision.

Thanks to Mendel Simon for his contribution.

Be Careful with Work E-mail in NJ

In Stengert v. Loving Care Agency, plaintiff filed suit against her employer alleging a hostile work environment led to her constructive discharge. During discovery, counsel for the defendant had a search performed on the computer that plaintiff used while an employee in order to recover any deleted information. The search revealed temporary Internet files containing e-mails sent from plaintiff’s personal Yahoo account to plaintiff’s lawyer.

Plaintiff took the position that those e-mails were protected by attorney-client privilege, and moved to restrain the use of the e-mails and to disqualify defense counsel. The Court looked to the employer’s communication policy that warned “any and all internet use and communication conducted on the employee’s computer is not private” and that also warned that all such files are considered part of the company’s business. The Court thus held that the plaintiff waived any privilege and denied plaintiff’s motion.

Thanks to Denise Ricci for her contribution.