The Sidewalks are Narrowing in New York

New York City’s “Sidewalk Law” of 2003 famously imposed on landowners the obligation to repair sidewalk defects and to clean up snow and ice or face the wrath of the plaintiff passers-by who populate our fair city. In recent years, the courts have refined the definition of sidewalk to exclude curbstones and tree wells. Now, an appellate court in Manhattan has further restricted the area that must be repaired and maintained by the adjacent landowner. The court ruled last week that the pedestrian ramps that are carved into the sidewalks at most intersections are not part of the sidewalk for purposes of the Sidewalk Law.

Specifically, in Ortiz v. City of New York, plaintiff, who tripped and fell in a hole at the edge of a sidewalk pedestrian ramp, sued the City of New York and the abutting property owner and managing agent. In moving for summary judgment, the City contended that it had not received prior written notice of the defect and that, in any event, it was not liable under Admin Code §7-210 (the abutting owner liability ordinance). The abutting owner and managing agent cross-moved for summary judgment, contending that a corner pedestrian ramp was not within the meaning of the term “sidewalk” as used in Admin Code §7-210.

In opposition, plaintiff submitted the affidavit of an expert, who stated that there was a height differential of 1½ to 2 inches between the base of the ramp and the street due to the absence of a protective curb, and that the City improperly paved the street next to the ramp.

The Supreme Court, New York County, denied the City’s motion, finding issues of fact as to whether the City created the defect when it repaved the street. The trial court also denied the owner and agent’s motions, holding that the pedestrian ramp was part of the sidewalk pursuant to Admin Code §7-210.

On appeal, the Appellate Division, First Department, stated that Admin Code §7-210 must be strictly construed. Therefore, if the City intended to shift liability for accidents on pedestrian ramps, the City needed to use specific and clear language in the Code to accomplish this goal. Finding no such language, the Appellate Division ruled that the abutting landowner’s liability does not extend to corner pedestrian ramps.

The Appellate Division reversed the lower court’s ruling and dismissed the complaint and cross-claims against the landowner and managing agent. The lower court’s ruling as to the City was affirmed.

Fore! — PA Appellate Court Hits One Long and Straight.

In a ruling of special interest to WCM Partners, one of whom recently hit another in the side with a golf ball, a PA appellate court has just ruled in favor of a plaintiff who was struck in the face by a golfing partner’s tee shot. In the case of Zeidman v. Fischer, the plaintiff was tasked with checking on the location of the group in front of him. While driving back to the tee to advise his partners that they could tee off, defendant Fischer teed off and smashed the ball right into the plaintiff’s face. A lawsuit resulted. The trial court ruled for the defendant, but the appellate court reversed. It held that, under the particular facts of this case, it could not rule as a matter of law that the risk was “one inherent or common, frequent and expected” to the game of golf. The case will proceed.

This is not good news for the guilty WCM partner as there are still 705 days remaining until the statute of limitations expires.

Everything I Needed to Know I Learned in Kindergarten.

To assist in the training of the next generation of greatest Americans, Americans fully versed in reality television skills, a Florida elementary school allegedly held a Survivor style vote to decide whether a kindergartner should stay or go. Unfortunately, for the young boy, his classmates voted him “out” because, among other things, he ate crayons, paper and “boogers.” A lawsuit against the school, but thankfully not the other 5 year olds, has resulted.’s%20Suit%20Claims%20Son%20Voted%20out%20of%20Kindergarten

Say Cheese! Photo Taken with Mobster not Actionable (NY)

Plaintiff attended the trial of the notorious mafia boss, John Gotti, and after court broke for the day, plaintiff decided to help Gotti maneuver through the throng of photographers and into Gotti’s car. A freelance photographer then took a picture of plaintiff holding Gotti’s arm. The photo was ultimately used in an advertisement for the television program, Inside the Mafia, and the ad appeared in posters throughout New York City.

Plaintiff filed suit in Alfano v. NGHT, et al, alleging that the unauthorized use of his image violated his privacy. The Court held, however, that the New York statute prohibiting the “commercial appropriation” of a living person’s image did not apply because of the “newsworthy” nature of the trial that was being photographed. The Court also held the advertisement was an “incidental use” of the image to illustrate the newsworthy content of the television program. The plaintiff’s other claims were also rejected and the court dismissed the complaint.

NY Appellate Division Holds “Readily Available” Safety Devices Is An Issue of Fact

In Cherry v. Time Warner, Inc., et al., the plaintiff , a construction worker, fell 3 floors from a scaffold on which he was working at the Time Warner Center. He sought summary judgment on his Labor Law 240(1) claim, arguing that defendants failed to provide him with adequate safety guardrails for the scaffold and that their failure to do so resulted in his injuries. Defendants cross-moved for summary judgment on grounds that plaintiff’s conduct was the sole proximate cause of his injuries, not the alleged violation of the Labor Law. The trial court denied both parties’ motions holding that a triable issue of fact existed as to whether guardrails were in place on the scaffold from which plaintiff fell and whether they were made readily available on the job site.

Over a vigorous dissent, the First Department affirmed and examined two controlling Court of Appeals cases – Montgomery v. Federal Express Corp. and Robinson v. East Medical Center – where the workers’ conduct was found to be the sole proximate cause of their injuries by failing to use their “normal and logical response” to procure “readily available” safety devices. The First Department reasoned that a worker’s “normal and logical response” to search for the safety equipment is triggered only when the worker knows exactly where the equipment is located and it is common practice to obtain that equipment.

In the Cherry case, the parties made conflicting statements as to where the scaffolds with appropriate guardrails were located on the date of plaintiff’s accident. Accordingly, an issue of fact existed which precluded summary judgment. The Appellate Division further noted that while the question had not been presented, it would be highly unlikely that a scaffold with proper guardrails located on a different floor would be considered “readily” or “easily” available to the worker.

Thank to Stephanie Chen for her contribution to this submission.

NY Appellate Division Tosses Plaintiff’s Case on Issue of Notice

In Wartski v. C.W. Post Campus of Long Is. Univ., the plaintiff claimed that she was injured when she slipped and fell on water and icy snow that was tracked onto the stairs of the defendant’s building. The trial court denied defendant’s motion for summary judgment. On appeal, the Appellate Division, Second Department reversed and ordered that summary judgment be granted to the defendant.

The Second Department determined that the evidence was insufficient to show that the defendant had actual notice of a recurring dangerous condition such that it could be charged with constructive notice of each specific re-occurrence. At most, the defendant had only a general awareness that the stairs became wet, which was insufficient to establish constructive notice or a recurring dangerous condition.

The appellate court also found that the plaintiff’s expert affidavit submitted in opposition to defendant’s summary judgment motion should not have been considered in determining the motion’s outcome. Since the plaintiff failed to identify the expert until after all discovery was certified as complete and failed to provide a valid excuse for the delay, the plaintiff’s expert affidavit should have been disregarded.

New York remains a good state for defendants on the issue of notice. In every slip and fall case, the plaintiff’s proof should be scrutinized on the issue of notice and summary judgment considered after discovery is complete.

Thanks to Jung Lee for his contribution to this submission.

Does Fewer Super-Rich = More Fine Art and JB Claims?

According to the New York Times, that class of people known as the “super-rich” is declining. Since the members of this class are most likely to possess jewelery, works of art and other valuable objects insured by the specialty markets, the question is — will claims increase as the now “merely rich” search for new ways to pay off their debts and/or maintain their lifestyles?

Visions in the Night: A PA Settlement Wipes Out Years of Precedent.

In the case of Klein v. Amtrak , two trespassing teenagers climbed atop a train car parked in a lot owned by Antrak. They suffered serious burns when they got too close to a 12,000-volt wire. The jury found for the plaintiffs (finding them 0% liable) and awarded $24,000,000 in compensatory and punitive damages. During the progression of the case, the court made new law on the “attractive nuisance” doctrine, and the standard of proof required to show that a landowner was aware of a risk because of similar prior accidents. The case has now been settled during the pendency of an appeal. As a condition of the settlement, and with the approval of the district court, all prior decisions were vacated. But for the money, it’s as if the case never happened.

NY Appellate Court Upholds Assumption of Risk Doctrine

The First Department recently upheld the long-standing doctrine of assumption of risk in Nutley v. SkyDive the Ranch. In Nutley, the plaintiff was skydiving when the main parachute failed to open during a tandem sky dive. Although the lower court denied the defendant’s motion for summary judgment, the appellate court reversed and held that the plaintiff assumed those risks inherent in skydiving and failed to raise an issue of fact as to whether SkyDive acted negligently so as to create a unique and dangerous condition beyond those inherent in the sport.

Thanks to Lora Gleicher for her contribution to this submission.

NY Appellate Court Grants SJ to Landowner in Slip and Fall Case

In Carmona v. 40-25 Hampton, LLC, the plaintiff slipped and fell on rain water that had accumulated through an open window by a staircase in a common area of the defendant’s building. The window was accessible to anyone and the building superintendent testified that he had closed the window 2½ hours before the incident. In granting the defendant’s motion for summary judgment, the Appellate Division held that the plaintiff failed to raise a question of fact that the defendant had notice of the condition. Although the plaintiff showed that the owner had notice of other tenants routinely opening the window, this “general awareness . . . was insufficient to raise a triable issue of fact as to whether defendant had constructive notice of the wet condition in the stairway which allegedly caused the plaintiff to fall.”

Thanks to Bill Kirrane for his contribution to this post.