In Schoneboom v. B.B. King’s Blues Club & Grill, the plaintiff was injured when a slam dancer slammed into him during a performance. The court held that the plaintiff’s claims were barred by the assumption of risk doctrine in that he initially observed the open and obvious slam dancing from a safe distance and fully appreciated the risks involved, but still chose to move closer to the dancers.
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08160.htm
In 720-730 Fort Wash. Ave. Owners Corp. v. Utica First Insu. Co., Utica denied coverage for an underlying tort action wherein a subcontractor’s employee was injured when a concrete block fell on him while working on 702-730 Fort Washington’s construction site. The policy had exclusions for bodily injury to any employee or any liability arising out of any roofing operations. The property owner argued that the exclusions rendered the insurance policy illusory and against public policy since it did not provide any of the insureds with the usual construction site coverage required under its agreement with the general contractor and subcontractors.
The Court ruled that Utica’s policy was misleading and did not provide the coverage necessary to protect Fort Washington from the construction site risks and the vicarious liability imposed by the Labor Law. However, the exclusions were judicially upheld and the inadequate insurance policy was found to not have violated any regulation or statutorily declared public policy. The Court suggested that the passing of a statute or regulation mandating the issuance of a “uniform construction site insurance policy” would reinforce the public policy goals sought under New York Labor Law; however, the Legislature has yet to act as such. In the meantime, the Court reminds insureds of the need to perform a due diligence review of the policy, citing the maxim caveat emptor – let the buyer beware.
Thanks to Chris O’Leary for his contribution to this post.
http://www.nycourts.gov/reporter/3dseries/2009/2009_29443.htm
In Brodie v. Gibco Enterprises, Ltd., the plaintiff, a patron in the defendant’s restaurant, tripped and fell on a single step that separated the bar from the dining area. The plaintiff claimed that the lighting in the bar area was inadequate. The restaurant moved for summary judgment on the grounds that the area above the step was lit by a recessed lighting fixture in the ceiling and that the step neither was inherently dangerous nor constituted a hidden trap. The lower court granted the defendant’s motion and the plaintiff appealed. In affirming the decision, the First Department found that the plaintiff’s testimony alone, without any other admissible evidence as to the sufficiency of the lighting or the inherent danger of the step could not defeat summary judgment.
Thanks to Ed Lomena for his contribution to this post.
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07930.htm
The Second Department recently held that the mere act of painting a portion of a sidewalk does not create a hazardous condition or put a landowner on notice of an allegedly hazardous condition. In Ford v. Domino’s Pizza, LLC, the plaintiff slipped and fell on a raised portion of sidewalk that had been painted blue. In granting the landowner’s motion for summary judgment, the court emphasized that the plaintiff’s allegation that the paint made the sidewalk inherently slippery was insufficient to raise a triable issue of fact.
Thanks to Lora Gleicher for her contribution to this post.
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07979.htm
In Garcia v. Good Home Realty, the plaintiff claimed that she slipped and fell on wet stairs in the defendant’s building. She initially testified that she did not know the source of the water, but later submitted an affidavit that the steps appeared recently mopped. In support of its summary judgment motion based on lack of notice, the property owner submitted an affidavit from its porter who stated that he had not mopped the stairs that morning. In opposition, the plaintiff submitted an affidavit from her brother-in-law who stated that he noticed the soapy condition of the stairs shortly before the accident. The Appellate Division held that the affidavit was insufficient to defeat the motion because the brother-in-law had not been previously disclosed as a witness and that submitting an affidavit from an undisclosed notice witness was improper.
Thanks to Bill Kirrane for his contribution to this post.
http://www.nycourts.gov/reporter/3dseries/2009/2009_07938.htm
In Broodie v. Gibco Enters, Ltd., the plaintiff fell and injured herself when she tripped on a step separating the bar area from the restaurant area at defendant’s restaurant. Plaintiff claimed that while the step itself was safe, insufficient lighting in the area created a condition which was both inherently dangerous and a hidden trap, resulting in her fall and subsequent injury. Bronx Supreme Court disagreed, and defendants were awarded Summary Judgment. Plaintiff appealed.
In affirming the decision of Supreme Court, Bronx County, the Appellate Division, First Department found that while landowners owe a reasonable duty of care to invitees, summary judgment may still be appropriate when the complained-of condition is both “open and obvious.” The respondents offered evidence that a recessed lighting fixture in the ceiling provided adequate light to the step area. Moreover, there were one or more black and yellow signs warning “CAUTION WATCH YOUR STEP” posted in the vicinity. The plaintiff’s deposition testimony that she still did not see the step before she fell was insufficient to raise a triable issue of fact.
Thanks to Brian Gibbons for his contribution to this post.
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07930.htm
In Colon v. Bet Torah, Inc., the plaintiff was an employee of a subcontractor performing construction work on the defendant’s premises. The plaintiff was purportedly injured when the cover of a grease pit upon which he was walking became dislodged, causing him to fall into the pit. His complaint included allegations of common law negligence and a violation of Labor Law § 200, among others.
The defendant moved for summary judgment as to the plaintiff’s common law negligence and Labor Law § 200 claims. The trial court denied the defendant’s motion. The defendant appealed.
The Appellate Division, Second Department, affirmed. Specifically, the Court found that the defendant had failed to prove that it lacked constructive notice of the defect in the grease pit cover. In this regard, the court noted that the defendant failed submit any evidence regarding when it had last inspected the grease pit cover and also failed to submit any evidence proving that a reasonable inspection would not have revealed a defect in the grease pit cover. As such, the court ruled that the defendant failed to meet its burden in dismissing plaintiff’s common law negligence and Labor Law § 200 claims.
Thanks to Brad Thelander for his contribution to this post.
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07372.htm
Plaintiff filed suit against the City of Bayonne alleging negligent management, operation, inspection, construction design and maintenance of an icy sidewalk where she slipped and fell.
Plaintiff suffered a comminuted displaced intra articular fracture of the distal radius of her right wrist. After seven weeks of physical therapy treatment, plaintiff received and sought no further treatment. Her treating physician diagnosed her with Carpal Tunnel Syndrome and concluded that plaintiff’s injuries were permanent and progressive and casually related to the fall. He further stated plaintiff “sustained significant partial whole body permanent impairment” from her injuries.
In summary judgment, the judge found that plaintiff failed to show objective medical evidence of a permanent loss of a body function that is substantial, as required to trigger the Tort Claims Act. The judge reasoned that plaintiff’s subjective feelings of discomfort and her lingering pain resulting in a lessening ability to perform tasks were not sufficient to vault the TCA threshold. Plaintiff’s appeal was denied.
Thanks to Katusia Lundi for her contribution to this post.
In QBE Insurance Corporation v. D. Gangi Contracting Corp., plaintiff filed a declaratory judgment action in which it asserted that it was not obligated to defend and indemnify the defendant general contractor in an action for personal injuries filed by a worker injured on a construction site.
QBE disclaimed coverage on the ground of late notice of the underlying accident, claiming that Gangi did not notify it of the accident for three years. The terms of QBE’s policy required Gangi to provide notice of an occurrence as soon as reasonably practicable. The policy also provided, “Knowledge…by Your agent, servant or employee shall not in itself constitute knowledge of you unless the Corporate Risk Manager of Your corporation shall have received notice of such Occurrence.”
Gangi claimed that it was entitled to coverage, as its Corporate Risk Manager did not have knowledge of the incident during the three year period in which it failed to notify QBE of the accident.
QBE moved for summary judgment. The trial court granted the motion. Gangi then appealed.
In reaching its decision, the Appellate Division, First Department, noted that Gangi’s president admitted that he had knowledge of the accident as soon as it occurred. The court ultimately held that because Gangi’s president was an executive officer and not merely an “agent, servant or employee,” his knowledge was imputed to Gangi and triggered its duty to notify QBE of the accident. The First Department then affirmed the trial court’s decision and granted summary judgment to QBE.
Thanks to Brad Thelander for his contribution to this post.
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07745.htm
In Cotugno v. Euro Lounge, the plaintiff sued for injuries suffered when he was escorted from defendant’s premises and accidentally tripped over a parking block. Plaintiff was successful at a non-jury trial and QBE Insurance Corporation, the defendant’s insurer and a third party defendant in the action appealed.
The appellate court agreed with the trial court’s interpretation of the policy. In addressing the policy, the court noted that bodily injury is or is not covered, as a general proposition, depending on the circumstances. It recognized that where bodily injury or property damage is expected or intended, it is not excluded from coverage if the bodily injury results from the use of reasonable force to protect persons or property. The court determined that the means of removing plaintiff from the lounge after he was punched was a reasonable use of force by the security personnel.
The court then addressed the assault and battery exclusion, which was an added exclusion to the policy. The court determined that the actions of the bouncers could not constitute an assault or battery because they did not possess the required intent to cause bodily injury; therefore, the court rejected the notion that the security personnel had committed an assault on plaintiff. As a result, the Appellate Division Court held that under the facts as found by the trial court, the provisions of the policy were properly applied and coverage was available to Euro Lounge.
Thanks to Sheila Osei for her contribution to this post.
