A Staircase Lobby Does Not Necessarily Need a Handrail

In Remes v. 513 W. 26th Realty, LLC, the plaintiff was injured when she took a step backward and fell down two steps from the defendant’s lobby into a smaller room where mailboxes were located. The staircase did not have a handrail. The court held that the owner made a prima facie showing that the stairway area did not constitute a hazardous condition. The plaintiff countered that the Administrative Code requires handrails on all interior stairs that serve as an exit to the building. This argument failed because the court found that the subject stairs did not serve as an exit. Thus, photographs of the staircase, coupled with deposition testimony that establishes (1) no prior similar incidents had occurred; and (2) lights illuminated the stairs is sufficient to establish entitlement to summary judgment.


Posted by Bill Kirrane.

NY App. Div. Finds Maintenance Records Key in Establishing Constructive Notice

In Zambri v. Madison Sq. Garden, the Second Department upheld the lower court’s denial of defendant’s motion for summary judgment, stating that the defendant failed to establish that it did not have constructive notice of the allegedly hazardous condition that caused plaintiff to fall. In Zambri, plaintiff slipped and fell on beer that had been spilled on the floor at Madison Square Garden. Although plaintiff didn’t see the beer before her fall, after landing on the ground, her pants were wet and smelled like beer.

Despite defendant’s event supervisor’s testimony that he inspected the floor over the course of the night and did not recall seeing any beer on the ground, the documentary evidence revealed that the area had been mopped on two separate occasions, well after plaintiff’s fall. Since the defendant did not offer any evidence as to when the area was last cleaned prior to plaintiff’s fall, the Second Department held that the defendant failed to establish that it did not have constructive notice of the condition prior to plaintiff’s fall.

Thanks to Lora Gleicher for her contribution to this post.


Homeowner’s Exception And Mixed Use

Generally, Labor Law Section 240(1) imposes absolute liability on homeowners and general contractors. The Legislature carved out an exception for owners of one-and two-family dwellings who are not in a position to realize, understand and insure against the responsibilities of absolute liability imposed by Labor Law Sections 240(1) and 241(6). The exception, however, does not apply to single-family residences that are used for commercial purposes

In Chester Lenda v. Breeze Concrete Corp. the defendant homeowner moved for summary judgment seeking dismissal of the plaintiff’s Labor Law 240(1) and 241(6) claims arguing that he was entitled to the protection of the homeowner’s exception because he planned to use the residence for potential overflow for family guests during vacations. The lower court denied the motion and the Appellate Division, Second Department upheld the denial noting that the evidence showed that a caretaker, employed by the owner, lived in the residence rent free as part of his compensation for maintaining two of the owner’s other properties. Thus, the court held that the owner’s use of the property was strictly commercial.

In cases of mixed use, the court’s determination on whether the homeowner’s exception applies is based on the site and purpose test. This test takes into account the intention of the homeowner at the time of the injury and not their hopes for the future.

Thanks to Ed Lomena for his contribution to this post.


No Bad Faith In Declining To Respond To Pre-Litigation Settlement Inquiry

In the underlying action, Darrie Eason asserted a claim against CBL Path Inc., a medical diagnostic laboratory, alleging that CBL negligently switched her breast biopsy specimen with another, resulting in an erroneous diagnosis of breast cancer and subsequent unnecessary double mastectomy. CBL maintained a $1 million medical malpractice policy with Lexington Insurance Company, to whom they timely reported the claim. In February 2007, Lexington exercised its right to be the sole authority handling the Eason claim. During the months that followed, Eason’s attorney contacted Lexington numerous times in an effort to settle the claim without litigation. When Lexington did not respond with an offer, Eason filed suit against CBL and subsequently made a formal demand of $5 million dollars in excess of the policy limit. A few months later, Lexington settled the case for $2.5 million, agreeing to pay the policy limits, with CBL paying the remainder. CBL then sued Lexington claiming bad faith in refusing to enter into pre-litigation settlement discussions with Eason’s attorney. CBL contended that had Lexington done so, the case could have settled for within the policy limits. Lexington prevailed on summary judgment and CBL appealed. The Second Department affirmed the lower court’s holding that Lexington did not act in bad faith because Eason’s attorney’s pre-litigation settlement inquiries never involved an actual demand, only a request to settle. The court noted that the first actual demand to settle for a specific monetary amount was made after suit had been filed and once the demand was made, Lexington acted fairly quickly in settling the matter.

Thanks to Alex Niederman for his contribution to this post.


Second Department Sends Towns Back To The Future

Various towns in Nassau and Suffolk County commenced a slew of construction defect cases against contractors that installed sewer systems for them in the 70s and 80s. To avoid the statute of limitation obstacles they faced, the towns couched their claims as “continuing public nuisances.” They alleged that because the damage stemming from the defective installation was continuing, the statute of limitations did not apply. In two such cases, the lower court agreed with the plaintiffs and denied the defendants’ motions for summary judgment. However, in Town of Islip v. H.T. Schneider Associates and Town of Babylon v. H.T. Schneider Associates the Second Department reversed the lower court’s decision. The Second Department found that “the acts underlying the cause of action sounding in continuing nuisance are the very same acts that underlie the breach of contract and negligence causes of actions, that is, the failure of the defendants to properly backfill the trenches during their performance of construction contracts. Since the alleged continuing nuisance “has its genesis in the contractual relationship of the parties, the cause of action sounding in continuing nuisance accrued when the construction work pursuant to the contract was substantially complete.” The Second Department has now made it clear that plaintiffs wishing to recover for damages sustained far back into the past will be brought back to the future by the statute of limitations.

Thanks to Cheryl Fuchs for her contribution to this post.


Third Circuit Sacks Spygate Suit

A ticket to a football game doesn’t come with any promise that the contest will be an honest one, a federal appeals court ruled on Wednesday, rejecting an appeal by fans who said they were defrauded in the recent New England Patriots “Spygate” scandal. In the suit, a proposed class action, lead plaintiff Carl Mayer, a New York Jets fan, claimed that he and other ticket holders were cheated out of what they had paid for — an honest game, played under NFL rules — when the New England Patriots surreptitiously filmed the signals of their opponents.

At issue in the appeal was “the alleged existence of a very specific but very different and unusual right: namely, the right of a ticket holder to see an ‘honest’ game played in compliance with the fundamental rules of the NFL itself.”

Although the case was unique, the courts have consistently rejected comparable claims, such as the ruling that said boxing fans weren’t cheated when Mike Tyson was disqualified for biting a chunk out of Evander Holyfield’s ear. As the New York Appellate Division explained in that case: “that there was nothing in any contract promising a fight that did not end in a disqualification.” In this case, the 3rd U.S. Circuit Court of Appeals held that a lower court correctly dismissed the suit on the grounds that fans cannot claim any “cognizable injury” that stems from paying to watch a game that is later deemed to have an element of cheating. Further, “a ruling in favor of [the ticket-holders] could lead to other disappointed fans filing lawsuits because of ‘a blown call’ that apparently caused their team to lose or any number of allegedly improper acts committed by teams, coaches, players, referees and umpires, and others,” wrote U.S. Circuit Judge Robert E. Cowen.

Thanks to Sheila Osei for her contribution to this post.


First Department Reverses NY Supreme Ruling on "Triable Issues of Fact"

Under §7-210 of the Administrative Code of the City of New York, a property owner is responsible to maintain the sidewalk abutting their property and keeping it in a reasonably safe condition. Moreovoer, liability for an accident on a sidewalk abutting real property will arise if a plaintiff can establish that the owner of the abutting property either created or had prior notice of the allegedly dangerous condition.

In Early v Hilton Hotels Corp., 2010 NY Slip Op 04235 (1st Dept. 2010) plaintiff was injured on the sidewalk abutting the owners’ premises, when she tripped and fell due to a plastic strap. In granting summary judgment to the defendants, the Court notes that defendants established lack of actual notice via the testimony of an employee at their loading dock, who testified that he never saw any plastic straps anywhere on the ground on the date in question. Plaintiff testified that she had never seen any plastic straps on the ground either. Based primariliy upon these two depositions, the Court granted summary judgment in favor of defendants. Given the facts, the First Department’s decision should not be surprising. What should be surprising, however, is that in order to reach this decision, a unanimous reversal of the New York County Supreme Court decision was required.

Thanks to Brian Gibbons to his contribution to this post.


An Unexplained Delay of 28 Days In Disclaiming Coverage May Be Untimely

Zevrone Realty Corporation, a holding company for a residential apartment building in the Bronx, sought coverage from its insurers for a sexual assault claim. Bronx Justice Kenneth Thompson, Jr. accepted, as a factual matter, that Zevrone’s notice of the occurrence was untimely (a delay of almost one year to report an incident that would likely give rise to a claim against management). But Judge Thompson was asked to determine whether the insurers delay in issuing disclaimers on grounds of late notice were untimely.

Citing the general principle that an insurer must give written notice of disclaimer as soon as is reasonably possible after it first learns of grounds for disclaimer of liability, Judge Thompson found that a delay of 98 days was unreasonable as a matter of law (thus granting summary judgment against Federal Insurance Company), and ruled that American International’s delay of 28 days raised a question of fact as to whether the delay was “reasonable” under the circumstances (thus allowing the action to continue against American).

NY App. Div. Dismisses Plaintiff’s Complaint Based on Assault

In Cagliostro v Madison Sq. Garden, Inc., plaintiff claimed to have sustained injuries to his shoulder when he slipped and fell while attending a rock concert at “the world’s most famous arena”. During plaintiff’s deposition, plaintiff stated that he slipped and fell due to liquid on the floor near his seat and hurt his back. Plaintiff was approached by defendant’s employee who told plaintiff to sit at an empty aisle seat. Another employee later approached plaintiff and although plaintiff informed him he was in a lot of pain, he grabbed and pulled plaintiff out of the seat and caused plaintiff to fall and hurt his shoulder.

Defendant moved to dismiss plaintiff’s complaint on the basis that plaintiff’s deposition showed that his injuries were caused by an assault that was time barred. The trial court granted defendant’s leave to amend its answer to include a statute of limitation defense but denied its motion to dismiss plaintiff’s complaint stating that “it could not find as a matter of law that plaintiff’s negligence claim ‘has been completely supplanted by evidence only of an assault.'”

On appeal, the First Department found that the plaintiff’s injuries were caused by an assault. The appellate court rejected plaintiff’s argument that there was evidence sufficient to show a cause of action for negligent training, supervision, and retention of staff. The trial court’s decision was overturned and defendant’s motion to dismiss was granted.

Thanks to Katusia Lundi for her contribution to this post.


NY App. Div. Dismisses Plaintiff’s Complaint on Various Grounds

In Khedouri v. Equinox, First Department affirmed the dismissal of plaintiff’s complaint because plaintiff failed to serve the complaint within 120 days of filing as prescribed by the CPLR. Moreover the court found that granting the plaintiff an extension of time was not in the interests of justice, as she claimed to have been injured in a fitness center competition, an activity for which she voluntarily assumed the risk. Finally, the court also denied plaintiffs request to serve a supplemental summons and amended complaint, as plaintiff’s amended complaint was served more than 20 days after service of defendant’s answer and without leave of court, which is not allowed under the CPLR.

Thanks to Alison Weintraub for her contribution to this post.