NY Court Finds Plaintiff Should Have Received Extra Time in NCAA Soccer Injury Case

In Calderone v National Collegiate Athletic Association, the plaintiff sued the NCAA and other parties for personal injuries allegedly sustained during a soccer game and the NCAA immediately moved to dismiss the complaint. On the return date of the NCAA’s motion, the plaintiff attempted to file a stipulation signed by the NCAA’s counsel, agreeing to adjourn the return date and extend the plaintiff’s time to submit opposition papers. But the court rejected the stipulation and marked the NCAA’s motion fully submitted without opposition. Plaintiff moved to extend his time to submit opposition papers to the NCAA’s motion — which was unopposed by the NCAA. But the court denied the plaintiff’s motion on the ground that he failed to follow the motion schedule set by the court’s rules.

On appeal, the Second Department reversed the lower court’s decision, citing to CPLR 2004 which provides, “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.”

Here, the plaintiff established good cause for an extension of his time to submit opposition papers to the NCAA’s motion given the brief and unintentional delay, the lack of prejudice to the NCAA, the existence of potentially meritorious defenses to the NCAA’s motion, and “the policy favoring the resolution of cases on their merits.”

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions.

Court Splits on Electrical Upgrade Issue (NY)

In Daly v 9 E. 36th LLC, a New York court wrestled with the issue of whether an apartment building has a duty to update its electrical system to meet the modern electrical needs of tenants, and the question of who is responsible when electrical overuse by a tenant results in a fire.

The plaintiff in this case was a tenant in the defendant’s building, who was injured by a fire in his rent-stabilized studio apartment. The fire was described in the fire incident report as originating “in an area of electrical wiring”; the report also noted the presence of “multiple extension cords plugged in to one outlet with a power strip.”

The apartment building was built in the 1930s and the plaintiff’s apartment had three electrical outlets in the main living space, with additional ones in the hall, the bathroom, and the kitchen. No interior electrical upgrade had ever been done to the apartment, although the plaintiff made several requests to the building to install more outlets. In addition, the plaintiff had shown the superintendent that the existing receptacles were in disrepair. Plaintiff told the superintendent that he “didn’t feel comfortable with using the extension cords,” and did not use them for long periods of time because they would get hot.

From all accounts the fire was caused by the overuse of the electrical outlets in the apartment. Plaintiff argued that the building’s decision not to upgrade the electricity in his apartment, despite the apartment’s history and his requests over the years, was a breach of the duty to keep the building safe and functional for all tenants.

The building filed a motion for summary judgment in New York County Supreme Court, and the court denied the motion. On appeal, the majority of the court agreed that a jury should decide whether plaintiff’s lifestyle and electrical consumption are above and beyond the reasonable needs of any modern tenant, and whether the building had a duty that it breached to keep the apartment building, and plaintiff’s apartment, reasonably safe.

The dissenting opinion, however, was that “rather than moderating his use of power to conform to the building’s electrical capacity (or at least using different outlets for different appliances), plaintiff was entitled to have defendant upgrade the building’s wiring to accommodate his demand.” The dissent concluded that summary judgment should have been granted on the ground that plaintiff’s negligent use of extension cords to operate numerous appliances simultaneously, as opposed to any alleged defect in the apartment’s electrical wiring, was the sole cause of the fire. In its conclusion, the dissent found plaintiff’s “lifestyle and electrical consumption” must still be in accord with the building’s electrical capacity.

Based on the 3-2 decision, it will be interesting to see if this decision winds up with the Court of Appeals.  Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions.

Court of Appeals finds Question as to Constructive Notice Despite Security Footage (NY)

Premises cases can hinge on notice of an allegedly defective condition, and an eventual accident. For defendant property owners, proving that you did not create or have notice of the dangerous condition is a continuous uphill battle. It is even more difficult when the condition is water or debris that is transient and could manifest at any time.  Under such circumstances, a defendant property owner must show when the area was last inspected and/or cleaned on the date of the accident to establish that the condition was not present for a sufficient period of time to constitute constructive notice.

In Parietti v. Wal-Mart Stores, Inc., 140 A.D.3d 1039, 34 N.Y.S.3d 474 (2d Dept. 2016), reversed (Sept. 14, 2017), plaintiff slipped and fell on a wet spot near an ice machine inside a Wal-Mart store. Wal-Mart submitted affidavits from store employees who were working in the area at and around the time of the accident and surveillance footage which showed a Wal-Mart employee constantly walking and inspecting the area where the accident occurred. The Appellate Division, Second Department, reversed the trial court’s initial denial of the defendants motion and found that defendant Wal-Mart established that the alleged wet condition was not present for a sufficient period of time for Wal-Mart’s employees to discover and remedy it prior to the accident. This was supported by plaintiff’s own testimony that she did not see the water when she initially walked in the area.

Thereafter, plaintiff sought leave to appeal to the Court of Appeals. The Court of Appeals heard the case and concluded that despite the evidence presented, a question of fact exists as to the length of time the water was present and if it were long enough that Wal-Mart should have discovered and remedied the condition. While the Court did not elaborate, it is possible that the footage actually hurt Wal-Mart’s position in that the area was constantly inspected so the condition, should have been noticed and cleaned immediately.

This decision highlights the difficulty in obtaining summary judgment on a slip and fall case for a defendant. It is even more difficult when the defendant does not have footage or a witness to testify about when the area was last inspected or cleaned on the date of the accident.  We expect Parietti to be widely cited by the plaintiff”s bar in summary judgment motion practice going forward.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

Second Circuit Reaffirms Privity Requirement In Additional Insured Endorsement (NY)

It is easy for claims professionals, contractors, and others to look no further than an underlying contract when determining whether a tendering party qualifies as an additional insured.  After all, when the promise to procure additional insured coverage is memorialized in a written contract, parties may expect the coverage to follow.

Of course, the experienced professional knows that insurance policy language determines additional insured status, not an underlying contract.  But it is important to carefully parse policy language as well, because even judges are capable of struggling with the application of clear policy language.  One additional endorsement that often causes confusion in the construction, legal, and insurance industries is the additional insured endorsement requiring contractual privity.

The Second Circuit recently addressed that issue in Cincinnati Insurance Company v. Harleysville Insurance Company.   There, the injured claimant was the employee of a sub-subcontractor on a construction project who was injured while performing his job duties.  After suit was filed, the general contractor’s insurer claimed its insured was an additional insured under the sub-subcontractors policy because the sub-subcontractor’s contract required it to name the general contractor as an additional insured.

Like many policies, the sub-subcontractor’s policy contained a blanket additional insured endorsement.  However, that endorsement conferred additional insured status on a third party “when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.”  When the issue was presented to the trial court, it ruled that the general contractor was an additional insured because the underlying contract required that party to be named as an additional insured, but the Second Circuit reversed.

Relying on relatively recent New York precedent, the Second Circuit reasoned that when interpreting the intention of parties to an insurance contract, courts are confined to the four corners of the policy, not extrinsic evidence such as underlying contracts.  Because the policy required privity between the insured and purported additional insured, the general contractor was not an additional insured.

Cincinnati should serve as a reminder to always start with policy language when analyzing rights and obligations under a policy.  Even then, words are to be afforded their actual meaning. We expect this decision to widely cited going forward, to support the privity requirement in assessing AI status.  Thank you to Michael Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.


We Didn’t Start the Fire: First Department Uphold Denial of Building Owner’s MSJ (NY)

Living in New York City offers unmatched opportunities and experiences.  There are, of course, trade-offs – high rents, small living spaces, and old infrastructures.  Residents do the calculus and decide that living in New York justifies these downsides.  Unfortunately, living in an older building can present additional considerations, including maintenance concerns and structural issues which, can lead to lawsuits.

In Daly v. 9 East 36th LLC, the Appellate Division, First Department affirmed the lower court’s denial of defendant’s summary judgment motion.  The apartment building was built in the 1930’s and there was no evidence that any interior electrical upgrade had ever been performed.  On June 19, 2013, plaintiff, a tenant in the building, sustained personal injuries from a fire in his rent-stabilized studio apartment.  The Fire Incident Report of the fire department’s Bureau of Fire Investigation found that the fire originated in an area of electrical wiring and noted multiple extension cords plugged in to one outlet with a power strip.

Before the fire plaintiff had on multiple occasions requested to the building superintendent that more outlets be installed and showed the existing outlets were in disrepair.  Plaintiff utilized extension cords for many of his appliances as a result.  Plaintiff purportedly also complained that the fuses in the apartment would blow and shut down the electric in his apartment and occasionally the building. The super testified that he had conversations with the plaintiff regarding updating the electrical system and that the defendant had repeatedly refused to make repairs due to costs.

The court denied the defendant’s motion for summary judgment finding that there was a triable issue of fact as to whether defendant had actual or constructive notice that a dangerous condition existed in plaintiff’s apartment that it failed to remedy, specifically that plaintiff’s expert opined that the building’s 1930’s electrical system constituted a dangerous condition and whether there was notice of the same.  The majority of found that the building owner had a non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others and that it was an issue of fact whether defendant’s decision not to upgrade the electricity kept the apartment reasonably safe.  The majority was unwilling to conclude as a matter of law that plaintiff’s lifestyle and electrical consumption were above and beyond the reasonable needs of any modern tenant.

The dissent argued that the plaintiff should have adapted his electrical usage to the building’s limitations rather than seek any kind of upgrade.  Further, the dissent noted that the absence of any evidence that the building’s wiring did not meet code standards or was otherwise defective, no basis exists for imposing liability for declining to upgrade the building’s wiring to suit plaintiff’s electrical usage.

The dissent’s arguments appear reasonable and account for a common sense approach.  However, the majority, in allowing the matter to proceed, put considerable weight on the plaintiff’s expert testimony in spite of the fire marshal’s finding. Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

No Commercial General Liability Coverage For Breach of Contract

In a recent New York appellate decision, the court considered whether an insurer must provide coverage to a purported additional insured for a claim involving breach of contract.  In J.W. Mays, Inc. v. Liberty Mut. Ins. Co., the Appellate Division, upheld the lower court’s dismissal in favor of the insurer.  J.W. Mays, Inc., the owner of a mall, hired Liberty Mutual’s insured, D. Owens Electric, Inc. for several construction projects, including work on the mall’s roof. Owens, the general contractor, subcontracted the roofing work to another party, which Mays alleged performed defective work.  Mays terminated the work and allegedly failed to follow the terms of payment under the contracts.  Owens filed an underlying lawsuit against Mays for breach of contract and unjust enrichment, and to foreclose on mechanic’s liens.  Mays then commenced the instant coverage action seeking a declaration that Liberty and Owens’ umbrella insurance carrier were obligated to defend it in the underlying action filed by Owens, as Owens had named Mays as an additional insured on its insurance policies pursuant to the terms of the construction contracts.

The Appellate Division held that, in keeping with the general rule, commercial general liability policies do not provide coverage for breach of contract.  Rather, they provide coverage for bodily injury, property damage, or personal and advertising injury.  That general rule was applicable to the instant action where coverage for additional insureds under the Liberty policy, as well as the umbrella policy, was only triggered with respect to liability from bodily injury, property damage, or personal and advertising injury caused in whole or in part by the acts or omissions of the purported additional insured or those acting on its behalf.  The court explained that to hold otherwise would essentially turn an insurance carrier into a surety for the performance of its insured’s work.  Here, Owens’ complaint against Mays sounded in breach of contract, and there were no claims for bodily injury, property damage, or personal and advertising injury.  Accordingly, the Second Department held that the insurer was not obligated to defend or indemnify Mays in Owens’ action.

This case serves as a reminder that the basic rules of insurance coverage under commercial general liability policies are as applicable as ever, and insurers should always verify the nature of the claims for which insurance coverage is sought.

Thanks to Rebecca Rose for her contribution to this post.





Early Summary Judgment Is Not Always Premature (NY)

Occasionally, there are instances where a party can feel trapped in a case in which it does not belong. The Appellate Division, Second Department’s decision in Haidhaqi v Metropolitan Transportation Authority provides guidance on moving for summary judgment in advance of the close of discovery while combatting opposing counsel’s claims that such a motion is premature.

Plaintiff Haidhaqi alleged that he was injured while working at a Metropolitan Transportation Authority project at the Culver Viaduct in Brooklyn, New York, where his employer was the general contractor pursuant to contract with the MTA. Plaintiff claimed that while painting an elevated beam, he was pinned between the railing of the boom lift he was using and the beam. His allegations sounded in violation of New York Labor Law 200, 240, and 241(6). Plaintiff’s employer was the general contractor for the Culver Viaduct project pursuant to contract with the MTA.

Defendant F&S Contracting was retained by the MTA under a separate contract as general contractor for the rehabilitation of a subway station at Smith Street in Brooklyn, which was located on part of the Culver Viaduct. Before the close of discovery, F&S unsuccessfully moved for summary judgment, which had been opposed by plaintiff’s counsel as premature.

The Appellate Division reversed the lower court, finding that F&S established that the work it performed in connection with the Smith Street Project was entirely distinct from, and unrelated to, the injury-producing work, which was part of the Culver Viaduct Project. F & S Contracting demonstrated that it discontinued its work on the Smith Street Project before the subject accident occurred. As F & S was not an owner, contractor, or agent involved in the Culver Viaduct Project, had no responsibility for procuring or supplying the allegedly defective boom lift involved in the accident, and exercised no supervision or control over the plaintiff’s work, it follows that F & S Contracting could not be held liable under any theory of liability asserted in the complaint

Plaintiff’s opposition, based solely on the claim that F&S’s motion was premature, failed to raise a triable issue of fact. The Court’s decision emphasized that a party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion. Rather, there must be some evidentiary basis to suggest that discovery may lead to relevant evidence.

Accordingly, defendant F&S’s motion for summary judgment dismissing the complaint and all cross claims against was granted in its entirety.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.


Setting Chain of Events in Motion Not Necessarily a Cause (NY)

We have all seen the scenario when a tragic accident results from a chain of events where more than one actor could have legal fault. We see this situation frequently when one of the tortfeasor’s insurance limits fall far below fair compensation, resulting in lawsuits against so called “deep pockets.”  Cases can be won on proximate cause when one party merely furnishes the opportunity for the real tortfeasor’s fault.

In the recent case of Goldstein v. Kingstona pedestrian was struck and later died from his injuries while walking in an intersection.  The defendant driver was moving in reverse at the time of the impact. Minutes before the accident, the defendant was driving on a one-way street in Queens when she came upon workers employed by the defendant Forest Hills Garden Corporation, who were re-sodding a part of the grassy area between the curb and the sidewalk. After a worker waved at her in a manner that she understood to mean that she could not proceed further on the one-way street due to the ongoing work, defendant drove her vehicle in reverse to an intersection, where she struck the decedent, who was walking in a crosswalk.

Goldstein, as executor of the decedent’s estate and individually, commenced this action against the vehicle’s owner and driver, as well as Forest Hills Garden Corporation, to recover damages for wrongful death. The Supreme Court subsequently granted FHGC’s motion for summary judgment dismissing the complaint insofar as asserted against it. The Appellate Division, Second Judicial Department affirmed the dismissal as to FHGC.

FHGC established evidence that its employees’ conduct in performing work near the roadway merely furnished the condition or occasion for the accident, and as a matter of law, was not a proximate cause of the decedent’s injuries. The driver’s decision to reverse her vehicle and drive back down the one-way street, ultimately striking the decedent, was the sole proximate cause of the accident.

The trial court and the appellate court held that FHGC demonstrated its prima facie entitlement to judgment as a matter of law. FHGC merely furnished the condition or occasion for the accident, and was not a proximate cause of the decedent’s injuries. The court reasoned that “There can be more than one proximate cause of an accident'” and “[g]enerally it is for the trier of fact to determine the issue of proximate cause.” However, “liability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of the event’ but was not one of its causes.”

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.


Forum Selection Backfires if Venue Improper (NY)

Is it a plaintiff-friendly venue or a defendant-friendly venue? This is one of the first questions asked at the onset of any litigation.  Where a case is venued matters.  Nunez v. Yonkers Racing Corp. serves as a reminder to consider if the plaintiff has properly laid venue and move timely when not.

 In Nunez, the plaintiff filed his action in Kings County (widely regarded as a plaintiff-friendly venue), alleging that he resided in Brooklyn.  The accident occurred in Westchester (considered a more defendant-friendly venue).  At his deposition, the plaintiff admitted that he has always been a Bronx resident.  Defendant moved to change the venue to Westchester.  The lower court denied the motion.  The Appellate Division reversed and found that the plaintiff, in selecting an improper venue when filing his complaint, had forfeited the right to choose the venue.  Moreover, the court held that the motion to change venue, which has to be filed within 15 days of serving an answer to the complaint, was timely because the defendant promptly moved after learning the plaintiff’s true residency.

Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.


Watch Where You Step: 2nd Department Affirms Sole Proximate Cause Defense (NY)

New York Labor Law §§ 240(1), 241(6) are notoriously plaintiff-friendly, and liability defenses are often limited at trial.  Defenses usually center on the sole proximate cause argument, which is often difficult to prove.  However, in Melendez v 778 Park Ave. Bldg. Corp., 2017 Slip Op 06175, the Second Department  affirmed the dismissal based on the sole proximate cause defense as well as other causation based arguments.

Plaintiff and coworkers were erecting a scaffold in the yard area of the defendant’s building to make a platform even with the sidewalk.  Plaintiff was building the platform portion of the scaffold by placing wooden planks on top of steel I-beams when he stepped onto an unsecured wooden plank, causing him to fall.  Plaintiff alleged violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence against the owner and general contractor.  The Supreme Court granted the portions of defendants’ motion to dismiss the Labor Law §§ 240(1), 241(6) cause of action.  The plaintiff appealed.

The Appellate Division affirmed the Supreme Court’s judgment.  The Court opined that in order to succeed on a cause of action alleged violation of Labor Law § 240(1), a plaintiff must demonstrate that there was a violation of the statute and that violation was a proximate cause of the accident.  In this case, the plaintiff was found to be sole proximate cause as he chose to step upon an unsecured plank that he had just seconds before placed on a narrow steel beam rather than standing upon the secured planking that was available to him and which he had used in the time leading up to the accident.

The Appellate Division affirmed the dismissal of the Labor Law § 241(6) cause of action because the alleged violations of the Industrial Code provisions were not a proximate cause of the plaintiff’s injuries, or conversely, did not apply to the facts of this case.  The Court also affirmed the dismissals of the Labor Law § 200 and common-law negligence actions as against the general contractor, determining that the plaintiff’s injuries did not arise from a dangerous condition on the premises, but from the manner in which the work was being performed.  On that basis, a defendant must have the authority to exercise supervision and control over the work to be liable.  Here, the defendant did not have the authority to control, direct or supervise the method or manner in which the work was performed.

The sole proximate cause defense is case specific and often difficult to prove.  However, this case provides an example of the Appellate Division rendering a decision, taking the events leading up to the accident into fair account.   The Court’s common sense analysis resulted in a properly affirmed dismissal. Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.