Author Archives: Diana Mauriello

WCM Awarded Summary Judgment in Westchester County Premises Case.

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New York, NY

Associate Lora H. Gleicher was awarded summary judgment in a Westchester County, NY premises liability case. In the case of Salvati v. Marriott, the plaintiff allegedly sustained injuries when an umbrella struck her head while dining outdoors at a Marriott located in Arizona. Plaintiff claimed that Marriott negligently permitted an umbrella to be left open during unsafe weather conditions, failed to secure the umbrella to prevent it from becoming hazardous and failed to warn plaintiff about the alleged hazardous condition.

At the close of discovery, we moved for summary judgment based on the fact that Marriott did not create or have notice – constructive or actual – of the allegedly hazardous condition that caused the umbrella to strike plaintiff’s head. Namely, Marriott was not aware of the allegedly hazardous wind condition that caused the subject umbrella to strike plaintiff. The trial court agreed with our analysis and thus dismissed the plaintiff’s complaint, nothing that Marriott was not responsible for the unpredictably of the weather.

WCM Obtains Summary Judgment in Brooklyn Labor Law Case.

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New York, NY

Associate Lora H. Gleicher was awarded summary judgment in a Kings County, NY Labor Law case. In the case of Martinez v. Adjmi, the plaintiff allegedly sustained injuries while performing construction work on the first floor of a two-family home that was being demolished. Plaintiff alleged that our client, the owner of the property, was responsible for his injuries.

At the close of discovery, we moved for summary judgment premised on the grounds that: (1) Labor Law §240(1) and §241 (6) exempt from liability owners of one and two family dwellings who contract for, but do not direct or control construction work; and (2) Labor Law §200, exempts owners from liability – so long as they do not direct or control the work. For these reasons, we argued that our client did not owe a duty to the plaintiff and could not be held liable for his injuries. Plaintiff attempted to create a question of fact, by arguing that as our client was a commercial real estate developer, the subject demolition and construction project was likely for commercial purposes. However, the trial court agreed with our position, as all evidence supported the conclusion that the subject property was being demolished and reconstructed for personal residential usage. As such, the plaintiff’s complaint was dismissed.

WCM Obtains Summary Judgment in New York County Premises Liability Case

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New York, NY 

Counsel Cheryl Fuchs and associate Gabe Darwick obtained summary judgment in a premises liability suit in New York County.  In Deanne v. Alrose, 32 LLC, plaintiff alleged that she slipped and fell on an interior staircase while at work. Our client owned the building but had relinquished control to the plaintiff’s employer.

With this backdrop, we took an aggressive approach, moving for summary judgment before depositions. We argued that our client was an out-of-possession landlord that was not contractually obligated to make repairs; that it did not exercise control over the building; that plaintiff’s accident did not arise out of a structural defect; and that even if plaintiff’s accident did arise out of a structural defect, the defect did not violate a specific statutory provision. Plaintiff cross-moved to compel an expert inspection of the property and opposed the motion on the basis that it was premature.

The Court accepted our arguments, rejected plaintiff’s, and granted our client summary judgment.

WCM Obtains Directed Verdict in NY Civil Court Jury Trial

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New York, NY 

Associate Lora H. Gleicher obtained a directed verdict in a jury trial in a New York County Civil Court matter.  In Newmark v. New York Urban Athletic League, plaintiff, an experienced volleyball player, was participating in a volleyball scrimmage on an allegedly sub-par volleyball court.  Prior to his participation, plaintiff did not execute a waiver or release because the scrimmage was conducted pre-season.  During the game, plaintiff was injured and he commenced suit as a result.

At trial, plaintiff testified that his injury occurred because the court was not regulation size and had poor lighting.  He also claimed that the use of stanchions to secure the volleyball net was improper and caused the net to sag. During an aggressive volleyball scrimmage, plaintiff jumped up to block the ball. When he did so, the opposing front-center player jumped as well, got caught in the net, and fell forward onto the plaintiff, causing the plaintiff to injure his left ankle/foot on the metal stanchion.

At trial, through our cross-examination, we were able to attack the plaintiff’s credibility and prove that, contrary to his representations, he was aware of the dangers in playing volleyball and yet decided to play all the same.  The trial court agreed and, before the jury got the case, granted a directed verdict in favor of our client, the New York Urban Professional Athletic League.

Judge Arrests Former Juror Regarding Personal History Not Provided To Attorneys

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Jurors are unpredictable.  While in the vast majority of cases the jurors act in an ethical manner, sometimes a juror’s actions cross the line.  Such is the case in the ongoing saga of United States v. Daugerdas, a federal tax shelter fraud case.

In Daugerdas, Southern District of New York Judge Pauley had to issue an arrest warrant for one of the jurors involved in that case to determine if a new trial was warranted.  The juror was subpoenaed to testify at a hearing.  The juror refused to appear, and was arrested by U.S. Marshals.  Apparently, the juror failed to inform the attorneys that she had a criminal history, that she was a suspended attorney, and that her husband was a convicted felon who had served seven years behind bars in New Jersey.  When finally questioned about her failure to tell the truth during voir dire, she responded that she was a fair and impartial juror.

We’ll see if the trial court agrees!

If you have any questions or comments about this post, please cnotact David Tavella at .

 

Discovery Can Sometimes Proceed In New York After the Note of Issue Is Filed.

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In Stock v. Morizzo, the Appellate Division, Second Department reversed the lower court’s decision that had denied the defendant’s motion to compel the plaintiff to submit to an independent neuropsychiatric examination.  In reversing the trial court, the Appellate Division held that parties are entitled to additional discovery after the filing of a note of issue when “unusual or unanticipated circumstances” develop.  In this case, the plaintiff served the defendant with a neuropsychiatric report two years after filing the note of issue, which alleged new psychiatric injuries stemming from the accident.  Accordingly, an independent examination was warranted so as to prevent the defendant from suffering substantial prejudice.
Thanks to Georgia G. Stagias for her contribution to this post.

In NY Carrier Must Disclaim When It First Learns Of Late Notice Basis For Disclaimer, Cannot Wait For Further Investigation.

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The question of when a carrier must disclaim coverage in New York for a bodily injury claim is a most litigated issue.  New York Insurance Law 3420(d) requires a liability insurer to give the insured written notice of a disclaimer “as soon as is reasonably possible.”  However, New York also has a “one disclaimer” rule, which requires a carrier to list all grounds for disclaiming coverage in the disclaimer or it will waive any other basis that may be available.  The Appellate Division, First Department recently reversed its prior rule and held that a carrier must disclaim when it first learns of a late notice basis for disclaiming coverage, even it the carrier is investigating other possible reasons that coverage may not be afforded.

In George Campbell Painting v. National Union Fire Ins. Co. (116389/08) it was not in dispute that notice of the loss was untimely, and that the carrier was aware of the late notice when it first received notice of the loss from a purported additional insured.  The carrier, however, investigated whether the entity giving notice of the loss was actually an additional insured.  The Appellate Division held that the disclaimer based on late notice, issued four months after the carrier received notice, was untimely, despite the ongoing investigation that was being conducted by the carrier.

How this duty-to-disclaim-immediately rule can be reconciled with the single disclaimer rule was left unanswered by the court.  No doubt additional appellate litigation on the subject will ensue!

Failure To Provide Discovery Leads To Striking Of Answer

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Although it sometimes seems that cases in New York can go on forever, with no penalties for dilatory conduct, courts will, eventually, enforce sanctions against a party that fails to provide discovery.  In Solomons v. Chaudhry, (Supreme Court, New York County, 110637/10) the defendant failed to provide discovery requested by plaintiff.  A compliance conference led to an order requiring production of the requested discovery, and provided that “failure to comply with the Order absent a showing of good cause shall result in dismissal of the complaint in the case of the plaintiff; or a striking of the answer, affirmative defenses and counterclaims, or a preclusion of evidence at trial in the case of the defendants, upon written notice of motion, of such non-compliance.”

After defendants failed to provide the ordered discovery, plaintiff moved to strike and/or compel the discovery.  The Court granted the motion.  After defendants again failed to provide discovery, plaintiff made another motion.  In response, defendants’ attorney provided an affirmation when he stated that the discovery was provided, but did not attach copies of the discovery or an affidavit of service. 

The court found that the failure to provide discovery was willful, and defendants failed to provide an adequate explanation for the failure.  The court, therefore, stuck defendants’ answers, but did not hold the defendants or the attorney in contempt for failure to comply with a the court orders.

This case shows that, while it takes time, a court will enforce discovery orders, and the parties must eventually comply with discovery requests.

For more information regarding this post please contact David Tavella at .

 

“Special Errand” For Employer Puts Accident On Trip Home From Work Under Workers’ Compensation

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In Matter of Borgeat v. C & A Bakery, the New York Appellate Division, Third Department upheld a finding that injuries caused by an accident involving an employee traveling home was compensable under Workers’ Compensation because the employee was performing a “special errand” for the employer. 

The employee, who died in the accident, worked at a bakery.  He was often asked to deliver cakes to a restaurant on his way home from work.  After the accident, which took place only two blocks from the restaurant in question, a cake box was found in the car.  This was sufficient to support a finding that the decedent’s death arose out of and in the course of his employment.

For more information on this post, please contact David Tavella at  

http://decisions.courts.state.ny.us/ad3/Decisions/2011/511442.pdf

Venue Change In Pennsylvania Proper If Any Defendant Does Not Do Business In County

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On October 21, 2011 the Superior Court of Pennsylvania decided Schultz v. MMI Products et al, 2011 PA Super 225 (Pa. Super, 2011), which affirmed the trial court’s transfer of venue to Lehigh County.

The plaintiff was injured at a construction site in Lehigh County but filed suit in Philadelphia County. Of the five defendants, two objected to venue in Philadelphia, as they did not regularly conduct business there. The Superior court noted that corporations have a constitutional right to seek a change of venue. The court also explained that venue questions are particularly fact-based and can only be decided on a case-by-case basis.

In this case, three of the five defendants waived their objection to improper venue when they did not raise the issue in their preliminary objections. However, despite plaintiff’s claims, the court explained the fact that the other defendants waived their right does not have the effect of establishing proper venue for all other remaining defendants.

This case is useful to all corporate defendants as a reminder that corporate defendants can be successful in transferring venue out of Philadelphia County. If a corporation does not have significant contacts in the county, this strategy is one that could prove quite beneficial.

Thanks to Remy Cahn for her contribution to this post.