Landlord’s Duty Arises From Ability And Opportunity To Control Conduct

In Banner vs. New York City Housing Authority, the infant plaintiff was injured when, while sitting on his bicycle in the courtyard at the rear of the defendant’s building, he was hit in the eye by a bottle that was allegedly thrown from the roof of the building.  The plaintiffs allege that NYCHA was negligent in failing to secure the roof and in allowing persons to use it in a dangerous and defective manner.  The court noted that  “a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances.”  This duty includes an obligation “to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person.  However, this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so.”

The defendant submitted affidavits from its supervisor of caretakers and a professional engineer establishing that the defendant was required to keep the door to the roof unlocked for fire safety purposes.  The testimony of the infant plaintiff established that neither he nor his friends actually saw a person on the roof throw a bottle, and that the alleged perpetrator was unknown, making it possible that the perpetrator was a resident of the building who would have had access to the roof despite any amount of security provided.  The plaintiffs failed to raise a triable issue of fact that the defendants had the ability and opportunity to control the conduct through the exercise of reasonable measures, and that the failure to have done so was a proximate cause of the injuries alleged.  As such, summary judgment was granted to the defendant.

Thanks to Sandy Debbas for her contribution to this post.

Stilt Fall Does Not Trigger Labor Law 240(1) Claim

In a minor victory for defendants in the recent Richmond County decision of Garcia v. Mt. Airy Estates, Inc., the trial court dismissed Garcia’s Labor Law 240(1) claim due to the fact that there was no issue raised regarding the malfunctioning of his safety device – a pair of stilts.  Garcia, a dry wall laborer, wore stilts as he applied spackle to the ceiling of a garage.  While working on the stilts, he claimed that he fell because of debris on the floor.  The court held that there was no issue raised to suggest that the stilts failed to perform the function required of them by statute or that they failed to allow Garcia to safely perform his work at the required elevation.  All claims sounding in Labor Law 240(1) were dismissed despite the fact that Garcia was in fact working from a height. The court did permit Garcia’s Labor Law §§ 200 and 241(6) claims to proceed due to the allegation that debris on the floor caused his fall.


“Regular Use” Auto Exclusion Upheld in NJ

Richard Vann sought med-pay coverage from Mercury Insurance Group, his personal insurance carrier for two automobiles that he owned, after he was injured in a car accident.  After the court granted summary judgment in favor of Mercury, Vann appealed.

Vann was injured while driving a truck belonging to Vann Trucking, a company owned and operated by his father.  Vann Trucking owned three trucks, including the Mack CH600 that Vann was driving at the time of his accident.  At his deposition, Vann explained that he drove that particular truck 90% of the time while working for Vann.  Moreover, he typically parked the truck close to his home so that it was easily accessible and drove the truck between three to five days per week.

The Mercury policy provided med-pay coverage for injuries sustained while using “a highway vehicle not owned by or furnished or available for the regular use of the named insured.”  Mercury disclaimed coverage due to the “regular use” exclusion under the policy.

The appellate court upheld the trial court’s decision, finding that the policy exclusion applied to the particular circumstances of this case.  Specifically, the use of the subject vehicle as described by Vann during his deposition constituted a “regular use” under the policy.

Thanks to Heather Aquino for her contribution to this post.

Third Circuit Hears Arguments on Title Insurers and Possible Antitrust Violations

In the case In re New Jersey Title Insurance Litigation, the Third Circuit Court of Appeals heard arguments on a class action suit brought against title insurers in New Jersey.  The plaintiffs argued that the defendant insurance companies violated federal antitrust laws when they agreed to charge the same amount for premiums after submitting their proposed rates and data to New Jersey regulatory agencies that approved the title insurance rates.

The insurers had previously prevailed in the district court where they argued that the filed-rate doctrine defined in the U.S. Supreme Court’s 1986 decision in Square D v. Niagara Frontier Tariff Bureau exempted rates that have been approved by a regulatory agency from antitrust challenges.  Conversely, the plaintiffs attempted to argue that the underlying principles of Square D were not present in the instant case and thus was not controlling.  However, the persuasiveness of the plaintiffs’ argument may not have resonated with the Court.  Former Justice Sandra Day O’Connor, who was seated on the panel noted, that the plaintiffs seemed to be in the wrong forum and a better course of action would be to seek legislative reform.

Thanks to Colleen Hayes for her contribution to this post.

Early Motion to Dismiss May Fail When Not Supported by Client Affidavit

Often the wrong corporate entities are sued in personal injury lawsuits.  Those parties often immediately move to dismiss the complaint.  However, when attempting an early exit, an affidavit explaining the relationship or lack thereof between the correct and incorrect entity is crucial to success.  In Heintz v. Irgang, the plaintiff slipped and fell in a puddle of water in an apartment located at “Roddy’s Place,” a conditional shelter operated pursuant to a contract with the City’s Department of Homeless services.  148 Realty owned the building and leased it to Bronx Addiction Services Integrated Concept Systems, Inc. a/k/a “Basics, Inc.”  BASICS Housing Inc. had a contract with the City Department of Homeless Services to operate a transitional residence program for homeless families.  BASICS Housing Inc. moved to dismiss arguing that it owed no duty to the plaintiff because it was not the owner of the premises, nor did it lease the premises from the owner (rather BASICS Inc. leased the premises).  In opposition, the plaintiff and co-defendants argued that BASICS Inc. and BASICS Housing had the same corporate address.  In addition, the plaintiff’s 14 Days Housing Contract with Roddy’s Place, listed both BASICS Inc. and BASIC Housing Inc. on top.  Accordingly, without an affidavit from the corporate officers, there were questions of fact as to the relationship between BASICS Inc., BASICS Housing Inc. and their varying roles at the premises.  The court denied BASICS Housing Inc.’s motion as premature.


Philly: Not as Bad as You Think?

We have previously commented, with more than a touch of gallows humor, on Philadelphia’s illustrious rank as the # 1 judicial hellhole in the country. But maybe, Philly is not as bad as you think.  The average civil jury award in Philadelphia fell 31% in 2011 – from an average of $1.49 million in 2010 to $1.02 million in 2011. The question is: why? Is it the economy? Poorer quality cases? Or better juries? The problem is – there’s no way to know for certain. So, while Philly might not be as bad as you think it is, there’s still exposure above the standard $1,000,000 CGL exposure. As long as you’re prepared for that contingency, we’re prepared to try your insured’s case. After all, there’s no (legal) rush like the trial rush.

For more information about this post, please contact Bob Cosgrove at

Insurer of Common Insured Entitled to Contribution of Defense Costs From Other Carrier

Recently, the New Jersey Appellate Division addressed the question of whether an insurer can pursue another insurer of a common insured for defense cost contribution when that second insurer had already settled with the insured. Where the insurers both provided primary coverage for the loss, the carrier who paid the costs of the defense had an equitable right to contribution separate and apart from subrogation. This right is not extinguished even by a settlement with the insured.

 In Potomac Insurance Company v. Pennsylvania Manufacturers’ Association Insurance Company, the issue arose out of a claim for continuous damage from water infiltration into a public school over a period of eight years. The insured general contractor had insurance policies with several insurers over that time period. When it was sued by the Board of Education, Pennsylvania Manufacturers issued a denial letter. Potomac undertook the insured’s defense and ultimately brokered a settlement with the Board of Education. In the meantime, the defense counsel filed a declaratory judgment action against Pennsylvania Manufacturers on behalf of the insured.

 Pennsylvania Manufacturers and the insured settled for $150,000 that was applied to the overall settlement with the Board of Education. Potomac’s appointed defense counsel for the insured negotiated the settlement agreement with Pennsylvania Manufacturers.

 During the coverage litigation, that latter agreement became a critical issue. Significantly, Potomac was not a party to the agreement. Moreover, the agreement, which was initially drafted by Pennsylvania Manufacturers, included negotiated language that was subject to varying interpretations as to whether Potomac’s right to contribution for defense costs was extinguished. As a result, the court found that the ambiguous contract did not reflect a meeting of the minds. Moreover, since Potomac had a separate right to contribution, the agreement did not defeat its claim for contribution of defense costs for the underlying litigation.

 On one last issue, the Appellate Division reversed an award of attorney fees related to the insurer’s declaratory action. Since the plaintiff insurer failed to bring the coverage claim in its name within the declaratory judgment action filed on behalf of the insured, it violated the entire controversy doctrine. Had it pursued its claim in the same action, the subsequent litigation would have been avoided. The award of attorney’s fees to a successful litigant on a liability policy is an equitable remedy, which the court deemed unavailable where the insurer violated this doctrine and, thus, had unclean hands.

For more information email Denise Ricci at

NY: Nine Years too Long to Vacate a Court Order

In Abrams v. Berelson, the defendant hired the plaintiff to clean her mother’s house after her mother passed away. As they were cleaning the house, the plaintiff’s coworker found a gun in the closet and accidentally shot the plaintiff. Plaintiff sued the defendant, arguing actual or constructive notice of a dangerous condition in the home.

The lower court granted the defendant’s summary judgment motion in 2000, finding that the plaintiff had failed to raise an issue of fact as to actual or constructive notice.

Nine years later, the plaintiff located his former coworker and obtained an affidavit stating that the gun was in a large box in the closet and that it would have been impossible for someone not to notice the gun upon opening the closet. The lower denied the plaintiff’s motion to renew/reargue, finding that the plaintiff failed to demonstrate a reasonable justification for his failure to obtain this new evidence sooner. Moreover, the plaintiff waited six months after obtaining the affidavit to make his motion to renew.

The Second Department affirmed the lower court’s decision. The Appellate Court also noted that the affidavit did not present issues of fact regarding the defendant’s notice. The defendant would only be liable if she had actual or constructive notice of a loaded gun in her mother’s house. The coworker’s affidavit simply showed that the defendant might have had notice of a gun in the house, which was not a dangerous condition.

Thanks to Georgia Stagias for this post.

For more information email Denise Ricci at


NJ School District Settles Student Bullying Suit For $4.2M

The Ramsey , N.J. School District has entered into a $4.2 million settlement with a student who was permanently paralyzed from the waist down after being punched in the stomach by a known bully at his middle school. The settlement is believed to be the largest yet from a lawsuit predicated on a school district’s failure to comply with anti-bullying laws. The student, Sawyer Rosenstein, had previously sent emails to school officials pleading for help and indicating that the bullying incidents had been increasing. It was also alleged that the school district made little or no  effort to comply with the anti-bullying laws prior to the attack and that Rosenstein’s attacker had a history of assaults.

Metro Cards – A Dangerous Condition in NY Subways?

The First Department recently affirmed the New York County Supreme Court dismissal of plaintiff’s complaint, which stemmed from a slip-and-fall at the 125th Street and Lexington Avenue subway station. Plaintiff claimed to have injured herself one morning when she slipped on MetroCards that had been discarded on the ground and sustained personal injuries.

As many of us are well aware, after realizing their MetroCards are empty, far too many people fail to use garbage cans and simply discard their cards on the floors of subway stations. At 9am on an average weekday morning, when this accident happened, it would be common to see several dozen discarded MetroCards on the ground adjacent to the turnstiles. Presumably, plaintiff argued that this phenomenon would have been sufficient to place the NYCTA on constructive notice of a dangerous condition, thereby defeating summary judgment against her.

The First Department disagreed in Harrison v. NYCTA. Notwithstanding the fact that strewn MetroCards were a “recurrent condition” at this and other stations, the Transit Authority demonstrated that a “reasonable cleaning routine was established and followed.” Their employee testified that she cleaned the station every morning, including that morning, and swept up all the MetroCards every few hours. In essence, just because the NYCTA was on notice of the MetroCard condition, the fact they they had protocols in place to address that condition made summary judgment appropriate.

Thank you to Brian Gibbons for his contribution.