Category Archives: New York

WCM Wins Rare Defense Verdict in Hit in the Rear Accident Trial

Posted on by

After a three day trial in Supreme Court, New York County, Wade Clark Mulcahy’s Michael Bono and Dana Purcaro obtain a rare defense verdict on liability in a hit in the rear accident case in Smyth v. Murphy, Index number 157795/2013.

Plaintiff testified to being involved in at least ten on the job accidents spanning over two decades. In each accident, plaintiff injured his cervical and lumbar spine and received medical treatment for those injuries, often filing related lawsuits.

Defendant Murphy testified that on the date of the accident, she tapped Smyth’s sanitation vehicle in the rear while he was stopped at a yellow light on the West Side highway during light snowfall. There was one scratch on Mrs. Murphy’s vehicle and no evidence of any damage to plaintiff’s vehicle. Despite the light impact, plaintiff called an ambulance and was taken to the hospital for treatment of his long standing cervical and lumbar spine injuries.  Sometime later, plaintiff underwent cervical and lumbar surgeries by Dr. Lattuga.

During the trial, the defense raised a number of credibility issues, including the apparent failure of plaintiff to inform his physicians about the number of prior accidents he had been involved in, including multiple accidents close in time to the 2013 accident at issue.  In addition, the defense presented proof that a prior MRI scan was the same as a scan taken shortly after this accident.  After brief deliberations, the jury returned a  verdict in favor of the defendants.  Please write to Mike Bono if you have any questions or wish to discuss this case further.

Spotlight on Broadway Theater’s Duty to Pedestrians (NY)

Posted on by

A theatergoer forced into the street due to a crowded lineup loses her bid to be compensated for her injuries that occurred not on that crowded sidewalk, rather in the street.

The First Department has upheld a Manhattan Supreme Court Justice’s grant of summary judgment to defendant landowner in Quigley v Nederlander Org., Inc, where plaintiff injured in front of a Broadway theatre. Plaintiff testified that upon arriving at the theatre, she and her group were directed to join the line to enter the building. As plaintiff followed her group to the back of the line, she stepped onto the street and her heel was caught in a crack between two metal plates causing her to fall. Plaintiff alleged that the theater was negligent because she forced to maneuver her way through a crowded sidewalk onto the street.

Defendant theatre owner, Nederlander Organizations, Inc. d/b/a The Lunt-Fontane Theatre, established entitlement to judgment as a matter of law. Defendant was not on notice of any dangerous crowding condition or of a hazardous condition on the street close to the area where patrons stood in line.

Notably, plaintiff did not identify that an overcrowding condition restricted her movement or that defendant directed her to walk on the street. Plaintiff acknowledged that the sidewalk traffic was made up of pedestrians and patrons and that the crowd was tame. The court noted that, even if the entire width of the sidewalk had been overtaken by the crowd, defendant owner still could not be liable for plaintiff’s injuries absent prior notice of a dangerous condition. Further, it was unforeseeable that directing plaintiff to join the line would have placed her in harm’s way.

Thus, since plaintiff was unable to raise a triable issue of fact as to defendant’s negligence, the First Department upheld summary judgment, based on evidence showing that plaintiff’s own culpable conduct in attempting to strategically maneuver her way through the crowd and ultimately caused her injuries.

We see an increasing number of cases involving pedestrians who claim injuries due to sidewalk configurations. This case clarifies the landowner’s duty for future litigation.

Thanks to Theresa Dinh for her contribution to this post.

The Espinal Defense and Plaintiff’s Pleadings (NY)

Posted on by

When defending a contractor, understanding what plaintiff’s pleadings fail to allege can allow one to prove the contractor’s entitlement for summary judgment even when affirmative evidence that negates the contractor’s duty to a non-contracting plaintiff does not exist.  In Cayetano v. Port Authority of New York and New Jersey, 2018 WL 5624037, 2018 N.Y. Slip Op 07285 (2nd Dep’t October 31, 2018), the plaintiffs, employees of American Eagle Airlines, Inc., slipped and fell on ice that accumulated near Gate C5 at LaGuardia Airport.  The plaintiffs commenced an action against the snow removal company, CTE Incorporated, among others.  CTE moved for summary judgment, and was denied, upon which they appealed.

As CTE was a contractor who did not contract with the plaintiffs, CTE would normally not owe the plaintiffs a duty of care unless the three Espinal exceptions applied, which are (1) where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, launche[s] a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely.

The Court ruled that CTE established its prima facie entitlement to summary judgment by showing evidence that plaintiffs were not parties of the on-call snow removal agreement, and that, therefore, they did not owe them a duty of care.  Importantly, the Court ruled that CTE were not required to affirmatively demonstrate that the Espinal exceptions do not apply when the plaintiffs failed to pled facts that would establish their applicability.

In opposition, plaintiff failed to raise a triable issue of fact regarding the instrument of harm exception, as CTE only plowed three days prior to the accident, and thus, claiming that they caused the thawing and refreezing of snow would be merely speculative.  Additionally, the plaintiffs failed to show that they detrimentally relied on CTE’s continued performance of their contractual duties.  As such, the Second Department reversed the lower court’s decision, ruling the CTE’s motion for summary judgment should have been granted.

This case shows how important it is to analyze the pleadings in contractor cases as plaintiffs’ own pleadings, by not including facts that establish the Espinal exceptions applicability, may make establishing the prima facie burden for entitlement to summary judgment easier.  This allows experienced counsel to move for and win summary judgment in cases where evidence may initially seem lacking.

Thanks to Jonathan Pincus for his contribution to this post.

Obscured Open and Obvious Condition May Be a Trap for the Unwary (NY)

Posted on by

Plaintiff tripped and fell on a “hump” on a baseball field in the Town of Smithtown and injured himself as he was attempting to move through the entrance of the field. This “hump” was caused by the Town’s installation of a drain, which was covered with asphalt. This hump extended to the area between the players’ benches and the entrance to the field on the third base side.

Plaintiff sued the Town of Smithtown in Suffolk County Supreme Court. Smithtown moved for summary judgment, contending that the condition of the hump was open and obvious and not inherently dangerous. The Supreme Court granted the motion, and the plaintiff appealed.

In Dillon v Town of Smithtown, the Appellate Division confirmed the duty of landowner is to maintain its premises in a reasonably safe condition.  And the Appellate Division confirmed that an exception to this duty exists when there is an open and obvious, and not inherently dangerous condition.  Further expanding on the “open and obvious” principle, the Appellate Division held that a condition that is ordinarily apparent to a person making reasonable use of their senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted.

Applying that distinction to the facts of this case, the appellate court found that the Town failed to prove that the hump was open and obvious and not inherently dangerous given the surrounding circumstances at the time of the accident.  In reversing the Supreme Court’s summary judgment decision the court highlighted plaintiff’s testimony that at the time of the accident, the hump was completely covered with dirt and sand and players were standing around it, thus obscuring his view of the hump.

The case highlights the reality that certain defenses, such as the open and obvious defense and other issues of fact need to be resolved by appellate courts, rather than the trial courts. Litigators presented with such issues should be prepared at an early stage to be mindful of the possibility of appellate practice.

Thanks to George Parpas for his contribution to this post.

ANSI Violation Constitutes Evidence of Negligence, According to NY’s Highest Court (NY)

Posted on by

In Bradley v HWA 1290 III LLC, plaintiff commenced an action against the building owners and elevator consultant, seeking to recover damages for wrongful death of an elevator mechanic who was electrocuted as a result of coming into contact with a transformer while servicing a malfunction in one of the building’s elevators.

Defendants moved for summary judgment dismissing the complaint, but said motion was denied by Hon. Lucy Billings, allowing plaintiffs to pursue their common law negligence and Labor Law § 200 claims based on the alleged inadequate lighting in the motor room and the alleged lack of a cover over the transformers. The lower court reasoned that defendants failed to demonstrate that the uncovered transformers and the lighting did not create dangerous conditions readily observable to defendants. The Appellate Court reversed the lower court’s decision, holding that: plaintiffs failed to establish liability based on inadequate lighting in the motor room; the building owner and consultant did not cause or create the hazardous condition; plaintiffs failed to establish that owner or consultant has actual or constructive notice of the hazardous condition; and, any failed to comply with American National Standards Institute (ANSI) requirements did not constitute negligence.

The Court of Appeals disagreed with the First Department’s ruling that ANSI standards cannot be used as evidence of negligence because they are not a statute, ordinance, or regulation with force of law, and held that “to the extent that a violation of ANSI constitutes evidence of negligence, plaintiffs’ reliance on those standards was proper.” Nevertheless, plaintiffs failed to raise a triable issue of fact as to whether defendants had either actual or constructive notice of the alleged dangerous condition, and the Court of Appeals upheld the reversal that granted summary judgment to the defendant.

This is a direct rejection of the rule that standards can only be used to show evidence of negligence if they have force of law required by statute, regulation, or ordinance, which has been a trend in the First and Second Departments.

Thanks to Margaret Adamczak for her contribution to this post.

Second Circuit Vacates District Court and Remands Sandy Case  

Posted on by

It has been just over six years since Hurricane Sandy made its devastating landfall in New York and New Jersey, causing nearly $70 billion in damages, but Sandy-related insurance litigation is still steadily making its way through the courts.

In Madelaine Chocolate Novelties Inc v Great Northern Insurance Company., the Second Circuit Court of Appeals recently held that a potential internal ambiguity in the policy mandated that the District Court’s judgment in favor of the insurer be vacated and remanded for further proceedings.  The relevant facts are straightforward:  Madelaine Chocolate suffered significant damage caused by the Sandy “storm surge,” the water pushed onto land by the force of the storm winds.  Madelaine timely submitted its claim to Great Northern for $40 million in property damage, and $13.5 million in extra operational expenses.  Great Northern disclaimed most of the claim on the basis that storm surge damage was excluded from coverage.

The Policy contained a ‘Windstorm Endorsement’ that provided coverage for “wind, wind-driven rain, erosion of soil….regardless of any other cause or event that directly or indirectly: contributes concurrently to; or contributed in any sequence to, the loss or damage…,” an anti-concurrent causation clause (“ACC”).  Great Northern’s disclaimer, upheld by the District Court, was premised on the Policy’s Flood Exclusion, which states that there is no coverage for “waves, tidal water or tidal waves, rising, overflowing…of any..  body of water or watercourse…, regardless of any other cause or event that directly or indirectly contributes concurrently to, or contributes in any sequence to, the loss or damage.”

While the District Court agreed that the Flood Exclusion unambiguously excluded storm surge damage, the Appellate Court disagreed, parsing the lower court’s analysis.  First, the Court ruled that the District Court relied on non-precedential opinions to decide that a storm surge  can be fairly categorized as a “flood,” noting that the cases relied upon did not include endorsements that added an ACC to the definition of covered peril.  Second, the Court found that the District Court’s reliance on several 5th Circuit Katrina cases was also misplaced, as none of the policies at issue in those cases likewise added an ACC to the definition of covered peril insured.

The key question on remand is whether or not the ACC clause in the Windstorm Endorsement conflicts with, or creates an ambiguity, with respect to the Flood Exclusion, reminding the District Court to “be mindful of well-established precedents requiring exclusions to be set out in clear and unmistakable language.”  ACC clauses have been held ambiguous in certain Katrian cases.  As Madelaine Chocolate continues its path through the New York court system, further clarity to these complex coverage questions will continue to inform the way coverage is analyzed, and perhaps how coverage is written, as significant storms become more common.

Thanks to Vivian Turetsky for her contribution to this post.

 

 

 

Wade Clark Wins Summary Judgment in Bouncer Assault Case (NY)

Posted on by

In Almendares v. Front Franklin Realty, Brian Gibbons and Chris Gioia recently obtained summary judgment for our client in an assault case venued in Nassau County.  The plaintiff alleged that he was assaulted by a bouncer at a Nassau County bar, and was hospitalized that evening.  Plaintiff alleged that he was punched in the face by the bouncer of the establishment, which caused him to fall down, hit his head, and be rendered unconscious.

Before the completion of depositions,we moved for summary judgment on behalf of the owner of the property, which leased the space to the bar, because our client was an “out of possession” landowner which did not hire or control the bouncer. The lease established that the property owner had nothing to do with the day to day operation of the bar.  Moreover, the owner asserted it did not hire or retain the bouncer.  The Court agreed with the argument of the owner, that further discovery would not change the clear and uncontroverted evidence that the property owner is not responsible for the bar owner, nor is it responsible for its employees or any assaults which may happen on its property.   Please email Brian Gibbons with any questions.

Can Plaintiffs Pass the Parker Test?  The Future of Asbestos Litigation (NY)

Posted on by

Back in 2017 in Matter of New York City Asbestos Litigation, the Appellate Division, First Department affirmed a trial court ruling that granted defendant Ford’s motion for to set aside the verdict.  And the Court of Appeals is set to rule on the admissibility of expert opinion in the underlying trial.

In the underlying action, decedent, Arthur Juni, passed away from mesothelioma allegedly caused by exposure to asbestos while he worked as an auto mechanic.  Decedent worked for non-party Orange & Rockland Utilities from 1966 – 2009, servicing predominantly Ford vehicles.  He was issued a respirator in 1988, but was exposed to asbestos for approximately 25 years prior to that.

The jury awarded decedent’s wife and administratrix $3M for her loss and $8M to the estate for pain and suffering.  The judge granted Ford’s motion to set aside the verdict for failing to quantify decedent’s exposure levels or provide scientific expression of his exposure level with respect to Ford’s products.  To be clear, a plaintiff must prove not only that mesothelioma was caused by exposure to asbestos, but also that exposure was to sufficient levels of the toxin to have caused the illness.  Due to studies that found mechanics working on friction products found no increased risk of mesothelioma and studies showing that only 1% of dust blown out from brake drums is comprised of asbestos, the trial court was not convinced with plaintiff’s experts that the cumulative exposure was sufficient to link decedent’s mesothelioma to the exposure.

Relying on Parker v. Mobil Oil Corp. which addressed a claim of years of workplace exposure to benzene in gasoline as a cause of acute myelogenous leukemia, New York established a rule in toxic tort cases that, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).”  In a fractured opinion, the Court agreed that there is consensus in the scientific community as to general causation, i.e., the link between asbestos and mesothelioma, but felt decedent failed in proving he was exposed to a sufficient amount of visible fibers to cause the disease, or, in the alternative, that a sufficient amount of toxins existed in the inhaled “visible dust” to cause the disease.

Given the complexity of the inquiry, the Court of Appeals heard oral arguments on decedent’s final appeal and is due to decide this issue within the next month.  Associate Justice Feinman who authored the dissent at the 1st Dept. level, and has recused himself, but should his brethren follow his lead, an asbestos plaintiff would have to show (1) regular use by an employer of the defendant’s asbestos-containing product, (2) plaintiff’s proximity to that product, and (3) exposure over an extended period of time.  Should the Court affirm the First Department, plaintiffs would have an additional hurdle in proving a specific relation to the exposure and the disease.  In the instant case, the Court found the experts to be too general, subjective and conclusory to find that decedent’s exposure was a significant factor in causing his cancer.  The battle of the experts in these cases have an unenviable job of using mathematical modeling or qualitative comparisons to recreate conditions, often decades after exposure and explaining their findings in lay terms for their non-medical audience in judges and jurors.  The Court of Appeals then must balance the danger of accepting correlation as causation and creating an insurmountable standard that would deprive plaintiffs of their day in court.  This decision could be a game changer in the future of asbestos litigation.  Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Skiers Assume Risks — But Not All Risks (NY)

Posted on by

A lawsuit was brought on behalf of a girl who allegedly broke her leg in a skiing accident at Catamount Ski Resort, located in upstate New York on the Massachusetts border. Apparently, plaintiff ran into an unpadded pole that was located in an area where skiing was permitted.

After discovery, the ski resort moved for summary judgment arguing that the plaintiff assumed the risks associated with skiing. Justice Manuel Mendez, a judge sitting on the Supreme Court in New York County granted Catamount’s motion, because plaintiff “assumed the risks” associated with skiing. Plaintiff appealed to the Appellate Division, First Department.

On appeal, the Appellate Division, First Department heard all arguments in regards to the case. When both sides rested, the court decided that the plaintiff did not assume the risk of hitting an unpadded pole in a skiing area and that it was an increased risk, not contemplated by the General Obligations Law section that barred such suits.  The panel stated that because of the location of the unpadded pole, it could be determined that the defendant failed to keep their property in a reasonably safe condition.

Thanks to March Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.

WCM Wins “Battle of the Experts” in Slip and Fall

Posted on by

Recently, WCM obtained summary judgment and a full dismissal of all claims against our client in Moran v. Levin, NY County Supreme Court, Index No.: 0151444/2016.  Brian Gibbons and Dana Purcaro prepared the motion, which Dana Purcaro argued before J. Cohen in NY County.

Plaintiff, who was working at our clients’ home as a housekeeper, slipped and fell on an exterior stairwell, and the fall was captured on our clients’ home security camera. Plaintiff sustained a severe fracture in her leg which required surgery and implantation of hardware.

Plaintiff conceded that it was raining at the time of her accident and that she failed to utilize the handrail, despite having knowledge of its presence. All parties conducted a site inspection with experts wherein measurements were taken, including tests to determine the coefficient of friction of the stairs, as they were made of smooth concrete.

Following the site inspection plaintiff exchanged their expert’s report which conceded that the stairs had a high coefficient of friction and that the stairs complied with the Residential Building Code. The expert then opined that despite that fact, the Court should find that the premises did not comply with accepted standards of safety due to the width of the stairwell (approximately 11 feet) and the fact that there was only one handrail. Our expert confirmed that the stairs were compliant with all applicable codes and rejected plaintiff’s claims that any other code should apply to our clients’ single family dwelling.

At oral argument, the Court rejected plaintiff’s expert’s claims that this home should have complied with other building code regulations and any claim that the placement of the handrail was in any way a contributing factor to plaintiff’s accident. Judge  Cohen granted our motion in its entirety and found that there were no questions of fact as to the safety of the stairs, the code compliance of the stairs, or as to whether the stairs were adequately maintained. Judge Cohen pointed to the video of the accident and said that it bolstered our position as it not only showed the stairs to be well maintained but showed plaintiff running down the steps without using the handrail or accounting for the obvious rain on the exterior steps.

This is an exceptional victory as typically a video of an accident is detrimental to a defense and Judge’s often will find questions of fact when there are two conflicting expert reports.   “Battles of Experts” generally refer to testimony before juries.  Here we were able to avoid the expense and exposure of a trial. (To date, no Notice of Appeal has been served.).