Security Guard’s Injury Action Docked By Older Safety Standards (NY)

In Schmidt v. One New York Plaza Co. LLC, the Appellate Division, First Department reaffirmed that in order to find a building owner liable for violations of building safety standards, a plaintiff must show violation of specific standards in existence at the time the building was built — and not at the time of the loss.

Plaintiff was assigned as a security guard at New York Plaza with his bomb-sniffing dog on the day of his accident. He was charged with inspecting trucks as they sought entry to the loading dock at the premises. Plaintiff was walking down the service ramp with his dog when a delivery person was ascending the ramp. Plaintiff took a step that came down on the outer edge of the ramp, causing him to lose his balance and fall backward off the ramp.

In support of its motion for summary judgment, defendant building owner submitted an expert architect’s report which concluded that the design and construction of the ramp did not violate the New York City Building Code or any industry-wide standard. More specifically, defendant’s expert opined that neither the Building Code nor OSHA contained sections specifically applicable to the instant facts. In opposition, plaintiff stated that its expert would testify that the ramp was defective and in violation of “good, proper, and accepted building and engineering standards” for ramps in equivalent buildings and was in violation of the New York City Building Code and industry standards at the time of construction.

The motion court denied defendant’s motion on the grounds that its expert, while addressing the New York City Building Code and Occupational Safety and Health Administration (OSHA) regulations, failed to address other types of industry-wide standards that might be applicable. However, the Appellate Division, First Department reversed, holding that plaintiff failed to raise a triable issue of fact to defeat summary judgment as to a violation of any industry-wide standard at the time of construction. Plaintiff’s expert failed to “offer concrete proof of the existence of the relied upon standard as of the relevant time, such as a published industry or professional standard or evidence that such a practice had been generally accepted in the relevant industry at the relevant time.”

Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono for more information.

Cyber Rules About to Get Real.

We have previously reported on NY’s onerous cyber rules. The rules go into effect by month’s end.

Specifically, n August 28, 2017, insurance companies that do business in NY will be obligated to institute policies and procedures that preserve and protect PII of clients, insureds, and other entities in accordance with 23 NYCRR §500 (et seq.). The rationale of the policy was explained by the Superintendent of the DFS:
Consumers must be confident that their sensitive nonpublic information is being protected and handled appropriately by the financial institutions that they are doing business with. DFS designed this groundbreaking proposed regulation on current principles and has built in the flexibility necessary to ensure that institutions can efficiently adapt to continued innovations and work to reduce vulnerabilities in their existing cybersecurity programs. Regulated entities will be held accountable and must annually certify compliance with this regulation by assessing their specific risk profiles and designing programs that vigorously address those risks.

Insurance companies, and other covered entities, are required to perform cybersecurity assessments in accordance with a written policy developed by the covered entity, that includes:
• An evaluation of encryption of data containing PII (both in transit and at-rest);
• The development of a Crisis Response Team (“CRT”) to respond to a breach;
• TFA or MFA;
• Identify and assess internal and external cybersecurity threats;
• Utilize defensive infrastructure in conjunction with appropriate policies and procedures to protect PII;
• Capability of detecting and responding to any intrusion;
• Ability to fulfill the statutorily required breach notification statutes.

Moreover, the regulations require a specific policy that regulates 14 different aspects of the covered entities operations. If this is not enough to develop specific in-house policies, the regulations also require that insurance companies ensure that other entities it does business with and transfers materials containing PII, to maintain and adhere to strict cybersecurity regulations that include a requirement for TFA, encryption, written policies, and periodic assessments of the efficacies and compliance to the policies. The insurance company is required to promulgate a policy for its third-party service providers that complies with the above requirements. If not, the insurance company may be held liable.

Furthermore, we note that this will soon be the policy in all 50 states. It is easier to implement these changes and requirements now as opposed to being forced to implement the policies at a rush and possibly not achieving full compliance.

Special thanks to Matt Care for his contributions to this post.

For more information about this post please e-mail Bob Cosgrove.

Email Scam Not Necessarily Covered As “Computer Fraud”

While it may seem counter-intuitive, wire fraud induced by email does not constitute a loss directly caused by the use of a computer, and for good reason.

The Eastern District of Michigan recently encountered this scenario in American Tooling Center, Inc. v. Travelers Casualty and Surety Co. of America.  The insured received what appeared to be an email requesting payment from a vendor.  To accomplish the ruse, the impostor artfully changed an “m” in the domain name of the vendor with “rn,” and further responded to requests for proof of milestones made by the insured.  After receiving such proof, the insured wired payment to the designated bank only to realize later it had been duped.

The insured submitted a claim for computer fraud to Travelers Casualty and Surety Company of America. The Travelers Policy covered “computer crime,” defined as any “direct loss of, or direct loss from damage to, Money, Securities and Other Property directly caused by Computer Fraud.”  The Travelers Policy further defined “Computer Fraud” as, in pertinent part, “[t]he use of any computer to fraudulently cause a transfer of Money….”

The Court held the email scam did not constitute a loss directly arising from the use of a computer. Instead, the Court observed the insured responded to the fraudulent emails by taking verification steps prior to authorizing the transfer of funds.  As a result, and unlike a hacking case, the transfer itself did not directly arise from the use of a computer.  In so holding, the Court emphasized “direct” in this context meant “immediate.”

Though the email was part of the scheme, the email was incidental to the occurrence of the authorized transfer of money. “To interpret the computer-fraud provision as reaching any fraudulent scheme in which an email communication was part of the process would…convert the computer-fraud provision to one for general fraud.”

Coverage often turns on a strict interpretation of causation, and it is no different when the means or mode of loss is through the internet. While an email may start the causal chain of loss, intervening acts can disrupt the chain of causation for coverage purposes.

Thanks to Chris Soverow for his contribution to this post.

Sand traps and Other Litigation Hazards (NY)

John MacIsaac was walking from the 12th green to the 13th tee box on a public golf course at Eisenhower Park when he  tripped on a sprinkler system coupling valve in a grass-covered hole, causing him to fall to the ground and sustain injuries which ultimately led to his death. In the ensuing wrongful death litigation, MacIsaac v. Nassau County, the question became whether MacIsaac had assumed the risk of a participant in a recreational sporting contest.

A party is deemed to have assumed the risk associated with an activity when engaging in sport or recreation, but only with respect to the commonly appreciated risks inherent in and arising out of the nature of the sport generally. This assumption of risk would apply to risks involved in the playing surface and open and obvious conditions.  However, if there were a concealed condition on the golf course or the inherent risks of golf were somehow unreasonably increased, the doctrine would not apply.

The County of Nassau sought summary judgment on the basis of this legal theory. In granting this motion, the judge rejected evidence submitted by plaintiff to oppose the motion, including plaintiff’s photographs, due to a purported violation of CPLR 3101, i.e. failure to disclose an authenticating witness.  Likewise, the plaintiff’s expert was disqualified as he relied upon the photographs.

The Second Department considered the admissibility of the supporting evidence in opposition, as well as the underlying theory of the case in overturning the dismissal of plaintiff’s case. The court found that authenticating information for the photographs was not necessary and that the expert opinion should have been considered.  After considering all of the evidence, the higher court held that plaintiff raised a triable issue of fact as to whether the subject condition was concealed or unreasonably increased the risks inherent in the golf course.

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at

Now You See It… Now You Don’t … A Tale of Two Trivial Defects (NY)

Property owners have a duty to keep their premises safe, and to protect passersby from dangerous or defective conditions. While courts will generally let a jury decide whether a dangerous or defective condition exists, property owners may be entitled to move for summary judgment where they can show, as a matter of law, that the alleged dangerous or defective condition was “trivial.” How a landowner demonstrates that a defect is “trivial,” however, may affect whether they receive summary judgment.

Two recent Second Department decisions, Kavanagh v. Archdiocese of the City of New York and Chojnacki v Old Westbury Gardens, Inc, demonstrate why landowners must take care to show, rather than tell, the court why an alleged defect is “trivial.” In Kavanaugh, plaintiff allegedly tripped and fell on an interior hallway tile while exiting a church owned by defendant. The Archdiocese moved for summary judgment, claiming that the alleged tile defect was trivial as a matter of law. In support of its motion, the Archdiocese submitted photographs of the alleged defect, measurements of the tile (which demonstrated that the defect involved, at most, a one-eighth inch height difference), and plaintiff’s own testimony of the time, place, and circumstances surrounding her injury. The trial court denied the Archdiocese’s motion, finding that an issue of fact existed as to whether the defect was “trivial.”

The Second Department reversed the trial court on appeal and granted summary judgment to the Archdiocese. The court first noted that while there is no specific “dimension test” to determine whether a defect is “trivial,” the court should look the individual facts of the case, such as the measurements and appearance of the defect and the circumstances surrounding plaintiff’s injury, to determine whether the defect is “trivial” or actionable. The court then determined that the Archdiocese, via its photographic evidence and plaintiff’s testimony” met its burden of proof to show that the defect itself was insignificant, and that there was nothing about the defect itself or the surrounding area that would increase the risk of injury to people as they walked by the defect.

On the same day that the Second Department granted summary judgment in Kavanaugh, it reversed summary judgment to the defendant landowner in Chojnacki, holding that the landowner had failed to establish that the alleged defect, a raised brick on a pathway, was “trivial” as a matter of law. The landowner submitted an expert affidavit and photographic evidence from the plaintiff depicting her on the ground shortly after she fell.  However,  the court noted that it could not see the raised brick on which she allegedly fell in the submitted photographs, and therefore could not tell whether the defect was in fact “trivial” or not.

When it comes to demonstrating that a defect is “trivial,” more evidence is better! High-quality photographs of the alleged defect and the surrounding area—with measurements—will go a long way towards showing the court why the alleged defect is not actionable. Absence of such evidence is noticeable, and likely fatal to any summary judgment motion.

Thanks to Peter Luccarelli for his contribution.

For more information, contact Denise Fontana Ricci at

First Department Enforces Settlement Reached via Emails After Plaintiff Attempted to Renege (NY)

By and large, most personal injury lawsuits settle.  Following discovery and as the liability picture becomes clearer the parties can engage in good faith settlement discussions and equitably resolve the matter. An essential element of good faith negotiations is that the attorneys have the authority to negotiate and settle. Plaintiff attorneys must be in sync with their clients during this phase, since settlement is ultimately a plaintiff client decision.  Once terms are agreed, the attorneys, clients, and carriers reasonably believe the matter is resolved and all that remains is the final paperwork and draft.

Unfortunately, there are occasions when a party either gets cold feet or blatantly reneges on an agreement.  Frustration, consternation, and, in matter of Jimenez v Yanne, motion practice and appeals to enforce settlement follows.    In Jimenez The First Department Appellate Division, reversed the trial court’s decision and granted the defendants’ motion to enforce a settlement agreement.

CPLR Section 2104 states: “an agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered…” The trial court rejected the defendants’ argument that a series of emails negotiating and agreeing to the settlement was enforceable.  Defendants’ attorney wrote, “Ok, we can agree to settle this matter for $13,000 to Jimenez and $17,000 to Morales.  Please confirm.  Thanks.”  The trial court note that defendants’’ attorney’s name was not typed at the end of her email.  Plaintiff attorney replied, “All good.  The power of email.” In a following email on the same day, plaintiffs’ attorney emailed, “Are you doing releases?” Plaintiffs’ attorney’s name was not printed at the end of either email.  The court found that as plaintiffs’ attorney did not type is name and the end of his email that confirmed the settlement; the emails do not qualify as signed writings pursuant the N.Y. General Obligations Law or the case law.  Therefore the settlement agreement was not binding upon plaintiff Morales, who changed her mind regarding the settlement.  (Plaintiff Jimenez provided a Stipulation of Discontinuance and a General Release).

In reversing, the appellate division found that the email communications between the plaintiffs’ counsel and defendants’’ counsel sufficiently set forth an enforceable agreement to settle the claims, including that of Morales.  The appellate division noted that plaintiff counsel typed his name at the end of the email accepting defendants’ office, which satisfied the CPLR requirement that settlement agreements be in a “writing subscribed by him or his attorney” in order to be enforceable.

This case highlights potential pitfalls of the negotiating process and the old Yogi Berra adage, “It ain’t over till it’s over.”  Professional ethics dictate that an agreement is an agreement.  Professional practice, however, illustrates that that is not always the case.   The attorneys signing their names to an email took on added significance, which resulted in appellate practice — and added litigation costs — over a relatively modest settlement.    Thanks to Justin Pomerantz for his contribution to this post.  Please email Brian Gibbons with any questions.

Municipal Animal Shelter “Sheltered” From Liability In Dog Bite Case (NY)

New York State is relatively lenient when it comes to imposing liability on dog owners in dog bite cases: an animal owner will be held liable for a dog bite when he knows or should have known about his animal’s vicious propensities and those propensities cause the plaintiff’s injuries.  A recent decision from New York’s Second Department shows that New York’s relatively lenient standard is even more lenient when the defendant is a government-run animal shelter.

In Abrahams v. Mt. Vernon, the plaintiff was the mother of an infant who was attacked by a dog when visiting the back room of an animal shelter.  In its motion for summary judgment, the City relied on its municipal status to argue that it could not be held liable.  The court agreed, and dismissed the complaint against the City.  In doing so, the court recognized that a municipality can only be held liable in this context if it had a special relationship with the plaintiff, which could only be proven if: (1) the municipality violated a statutory duty enacted to protect a specific class of persons; (2) it voluntarily assumed a duty on which the plaintiff justifiably relied to its detriment; or (3) it assumed control in the face of a known, blatant, and dangerous safety violation.

Because the City merely provided a governmental function designed to benefit the public at large, there was no special relationship and the City could not be held liable.  In passing, the court noted that the City would not have been liable under the standard applicable to private persons either, as there was no evidence of vicious propensity for this particular dog.

Abrahams is a reminder that government often enjoys greater legal protection than those it governs.  And both governments and private citizens who own dogs have greater protections from potential liability in New York than elsewhere in the United States.  Thanks to Michael Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.


Emergency Doctrine Not Enough to Save Mechanic from Liability in Motor Vehicle Accident (NY)

In D’Augustino v. Bryan Auto Parts Inc., 2017 Slip Op 05708 (2d Dept. 2017), defendant Boyle parked his car on a street near Bryan Auto Parts to obtain a New York State Inspection. Prior to conducting the inspection, defendant Rattray, a mechanic working for Bryan Auto Parts, drove Boyle’s car, intending to move it in to the garage for the inspection.

On the way from where Boyle parked the car into the garage, Rattray came upon an intersection where he was to stop at a stop sign. At that time, plaintiffs, who had the right of way through the intersection and no stop sign, were travelling through when the Boyle vehicle struck the plaintiffs in the side in the middle of the intersection. Rattray claimed that he attempted to stop but that despite his efforts the brakes were not working and he could not get the car to stop before hitting plaintiffs.

The lower Court granted the mechanic’s motion for summary judgment wherein they claimed that they were free from negligence under the “emergency doctrine.”  The defendants claimed that they had no knowledge that the brakes were broken and that Boyle did not tell them that there were issues with the brakes when he dropped off the vehicle.

The Appellate Division reversed the lower court finding that the shop and mechanic failed to show that there are no questions of fact as to whether an emergency actually occurred and as to whether Rattray acted reasonably under the circumstances to attempt to avoid the accident.  There was no corroboration of the brake failure, and in fact, defendant Rattray apparently repaired the brakes shortly after the accident.

The above decision reinforces how difficult it is for a defendant in New York, even one who did not own or maintain the vehicle, to obtain summary judgment in their favor in motor vehicle accidents, especially where the plaintiffs had the right of way.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

A Bridge Too Far – 1st Department Reverses Labor Law § 241(6) Claim Following Construction Accident on Whitestone Bridge (NY)

In James v Alpha Painting & Constr. Co., Inc, the First Department recently adopted a broad interpretation of section 23-8.2(d)(3) of the Industrial Code, which governs “mobile crane travel.”

The case arose from injuries sustained by plaintiffs Darren James and Balthazar Andrade, who were employed by a subcontractor on a project to renovate and repaint the Bronx-Whitestone Bridge. On the date of the accident, they were dismantling a scaffold and loading the materials onto a boom truck – a flatbed truck with a hoist or “boom” affixed to the back. Once they loaded the boom truck, plaintiffs were directed to board the boom truck while it drove the materials to the other side of the bridge. After driving approximately 700 feet, the raised boom struck an overhead road sign and gantry, causing part of the truck to swing into the air and throwing the plaintiffs from the truck onto the roadway, causing severe injuries. Plaintiffs commenced a lawsuit against, inter alia, Alpha Painting and Construction Co., Inc. (Alpha), the general contractor on the project, and GPI, the construction manager, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).

The trial court granted defendants’ motion for summary judgment dismissing the complaint. On appeal, the First Department upheld the dismissal of plaintiffs’ common-law negligence and Labor Law §§ 200 and 240(1) claims. First, the Court held that even though the accident occurred 700 feet away from the job site, it occurred while the truck was “in the process of driving away.” Accordingly, it should be considered part of the site of the purposes of the Labor Law. Secondly, the Court upheld the dismissal of plaintiffs’ Labor Law § 240(1) claim, as the plaintiffs’ injuries were not caused by an elevation-related risk, but by the motion of the truck after the boom struck the overhead road sign. Lastly, the Court held that Alpha put forth prima facie evidence that it only had general supervisory control over the plaintiffs’ work, which the trial court correctly held was insufficient to establish liability under Labor Law § 200 or the common-law.

In terms of plaintiffs’ Labor Law section 241(6) claim, the Court found that issues of fact warranted reversal of the trial court. Specifically, the Court analyzed section 23-8.2(d)(3) of the Industrial Code, which pertained to “mobile crane travel.” Section 23-8.2(d)(3) provided that “[a] mobile crane, with or without load, shall not travel with the boom so high that it may bounce back over the cab.” The Court recognized that in the case at bar, plaintiffs were not injured by the boom bouncing over the cab, but rather, when the boom hit the road sign. However, the Court looked to cases from other Appellate Divisions that held section 23-8.2(d)(3) was violated when a mobile crane has “the boom so high that it may bounce back over the cab.” Accordingly, the Court remanded plaintiffs’ Labor Law section 241(6) claim to the trial court, so that a jury could resolve outstanding factual questions related to the operation of the worksite and which defendant had control over the injury producing work.

Despite the fact that the First Department upheld the dismissal of most of plaintiffs’ claims, it was clearly reticent to refuse plaintiffs their day in court. Here, the dissenting justices noted that the majority went to great lengths to apply section 23-8.2(d)(3) of the Industrial Code – which dealt exclusively with mobiles cranes – to the case at bar, which dealt with a boom truck. To the dissenters, a mobile crane and a boom truck were clearly distinguishable, so the majority was “unconvincing” in its efforts to find factual issues by relying on a regulation that did not even apply. Overall, the majority opinion clearly demonstrates the high bar movants face when seeking summary judgment.  Thanks to Evan King for his contribution to this post.  Please email Brian Gibbons with any questions.

Mason Found to Fabricate Scaffolding Accident (NY)

The Queens County Supreme Court recently tried a case in which plaintiff alleged he fell off a scaffolding, injuring himself in Klimowicz v. Powell Cove Associates LLC et al.

The plaintiff in Klimowicz was a mason and allegedly injured his right shoulder when, while building a brick wall and standing on an elevated scaffold at a construction site, fell through an opening in the scaffold

Plaintiff sued the premises’ owner and two related entities alleging state labor law violations, believing he fell because two boards had been removed from the scaffold’s platform, and because he was not provided the proper safety equipment as required under the statute.

As a result of the accident plaintiff suffered injuries including two arthroscopic surgeries on his shoulder, several courses of physical therapy, residual arthritic pain in shoulder with weakness and diminished range of motion.   Plaintiff ultimately demanded $1,000,000 for both past and future pain and suffering.

The matter went before a bifurcated jury trial, with the issue of liability being first heard by the jury.  The defense attorneys argued that plaintiff completely fabricated the incident to recover for injuries suffered at an independent incident unrelated to the scaffolding.  Defense Counsel noted that during a workers compensation hearing, plaintiff stated his injuries occurred while he was moving building materials.  Defense counsel also noted that in plaintiff’s medical records, plaintiff indicated the injuries occurred while plaintiff was pulling up a heavy plank.   In addition, plaintiff did not immediately report the incident after it was alleged to have happened but waited over a month.

The underlying workers’ compensation file, and persistence by defense counsel and their claim representative, helped to uncover the inconsistencies in plaintiff’s account. Ultimately, the jury rendered a defense verdict, finding that the defendants were not liable for plaintiff’s accident.   Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions.