Author: Heather Aquino

Does Your Business Shift The Burden Of Proof (NJ)?

New Jersey Courts have widely recognized the “mode-of-operation rule”. Under this rule, if the very nature of a business’ operation creates the hazard, then the burden of proof for a negligence claim shifts to the business owner to negate the inference of negligence by providing evidence of due care. Self-service restaurants and supermarkets are all businesses that fall under the “mode-of-operation rule” due to the inherent operation style.

In a recent case, the Appellate Division reviewed a summary judgement motion decided by the lower court arising from a trip and fall incident that occurred inside a bagel shop. Aly v. A & H Bagels & Deli Inc., A-2726-21, 2023 WL 3295414 (N.J. Super. Ct. App. Div. May 8, 2023). Plaintiff allegedly fell on her way to throw out her trash due to a brown substance on the floor inside an A&H Bagel. The Appellate court reversed the lower court’s decision of granting defendant A&H Bagel’s motion for summary judgment. The appellate court found that A&H bagel could fall under businesses with self-service nature, expanding the type of businesses affected by the “mode-of-operation rule”. The court stressed that at the bagel shop, customers carry their food to their seats after purchasing and later dispose their trash in a receptacle. Such business operation style of customers serving and waiting themselves therefore invokes the “mode-of-operation rule”.

Thanks to Yifan Lin for her contribution to this post. Please contact Heather Aquino with any questions.Read More

Second Department Clarifies Distinction Between Administrative And Legislative Actions (NY)

In In the Matter of Lishan Aklog v. Town of Harrison, a four-judge panel at the Second Department ended a town drama predating the Covid-19 Pandemic, and in so doing, clarified the sometimes-nuanced distinction between legislative and administrative actions by a township. See Aklog v. Harrison, N.Y.S.3d (2023).

The Respondent, Anthony Robinson, has since 2012 served as the Commissioner of Public Works in the Town of Harrison in Westchester County. At a 2020 Town Board meeting, members expressed concerns about Robinson’s primary residency outside Harrison. Fueled by these concerns, the Board voted not to reappoint Robinson to his position, and instead, to appoint an acting commissioner. Importantly, the Board concretized its goals by adopting two resolutions.

But to the Board’s chagrin, the resolutions were never implemented as Counsel for Harrison advised, on bases unexplored by the Court, of legal consequences of summarily removing Robinson from his post. Thus, Robinson has continued serving as Commissioner despite the figurative coup d’état attempt.

But the Petitioner refused to accept the status quo, and filed suit in the Supreme Court, Westchester County. Petitioner initiated the action pursuant to CPLR § 78, seeking declaratory relief that would remove Robinson from his post and install the acting commissioner. The Court was persuaded by the argument of Robinson’s Counsel that the Petitioner lacked standing, and Petitioner appealed.

New York courts have long been guided by the rule that “citizen taxpayers have standing to ‘challenge important governmental actions’ when the failure to accord standing would ‘erect an impenetrable barrier to any judicial scrutiny of legislative action’” See Matter of Colella v. Bd of Assessors of Nassau Cty., 95 NY2d 401 (Ct. of Appeal 2000). In the instant matter, the Court needed to examine whether town board resolutions constituted administrative or legislative action and deemed them the former.

The Court relied on Matter of Clark v. Town Bd. Of Town of Clarkstown and held that Robinson’s appointment was a matter of administrative, rather than legislative, determination. See Clark v. Clarkstown, 28 A.D.3d 553 (2nd Dept. 2006). Much like Clark, which concerned the appointment of a local police chief, Aklog concerned the appointment of a local official. The Petitioner also failed to demonstrate that Robinson’s continuation as Commissioner was a matter “imperiling the public interest,” as required by General Municipal Law § 51.

In Aklog, the Second Department did not outline an ironclad or universal principle that town board resolutions are not legislative in nature. But the key trend within the Department is towards such resolutions constituting administrative action.

Thanks to Mark Kindschuh for his contribution to this post. Please contact Heather Aquino with any questions.Read More

Museum Fails To Prove Latent Defect (NJ)

In Agosto v. Museum of Modern Art, 2023 Slip. Op. 04292 (2d Dep’t Aug 16, 2023), the Appellate Division, Second Department, affirmed a lower court decision denying the defendant museum’s motion for summary judgment on plaintiff’s common law negligence and Labor Law § 200 claims.

Plaintiff, an HVAC technician, was conducting routine preventative maintenance when a hot water pipe burst and she fell from her ladder.  Plaintiff brought common law and Labor Law §§ 200, 240(1), and 241(6) claims against the museum.

The parties cross-moved for summary judgment.  The lower court denied plaintiff’s motion for summary judgment on her §§ 240(1) and 200 and common law claims, but partially granted defendant’s motion in dismissing plaintiff’s §§ 240(1) and 241(6) claims.  The lower court found that plaintiff failed to allege that she was engaged at the time of her accident in a Labor Law-protected activity and that did not allege any Industrial Code violation.  Notably, although plaintiff moved for summary judgment on her common law and § 200 claims in the lower court, plaintiff at the appellate stage abandoned that argument and instead argued that the lower court got it right that there remain questions of fact whether the museum created or had notice of the of the defective pipes.

The parties at oral argument contested whether any defect that led to plaintiff’s injuries was latent.  The Second Department held, consistent with its previous holding in Alexandridis v. Van Gogh Contr. Co., 180 A.D.3d 969 (2d Dep’t 2020), that the defendant-museum failed to establish the defect was latent because the museum could not show that “had it conducted a reasonable inspection, the alleged condition would not have been discoverable.”

Thanks to Abed Bhuyan for this post. Please contact Abed with any questions.Read More

Excess Carrier Has No Duty to Defend

In Harmon Cove IV Condominium Association Inc v. Indian Harbor Insurance Company, 2023 U.S. Dist. LEXIS 71960 (2023), the US District Court for the District of New Jersey held that Scottsdale Insurance Co. had no duty to provide coverage to a condominium association and its pool maintenance company for its negligence in allowing a maintenance worker to fall while working in the course of his employment. The judge ruled that the “Injury to Worker Exclusion” provision contained in the Scottsdale excess insurance policy applied.

The court recognized that an insurance policy is a contract “between parties who are not equally situated,” due to the fact that it is generally “prepared unilaterally by the insurer” and the insured’s “understanding is often impeded by the complex terminology used.” Therefore, when a language in the provisions of an insurance policy “fairly supports two meanings,” courts are to construe the policy “to comport with the reasonable expectations of the insured.”

Due to the lack of ambiguity in the policy, the Court ruled that Scottsdale is not obligated to defend or indemnify, as the plain terms of the Injury to Worker Exclusion were evident, and all plaintiffs’ claims against Scottsdale were subsequently dismissed. The primary takeaway from this case is that specific and clear language in an additional insured endorsement outlining the conditions for coverage is essential in determining additional insured coverage under a contractor’s policy.

Thanks to Matthew Staniloff for his contribution to this post. Please contact Heather Aquino with any questions.

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Preservation of Appellate Review – Is It Waived?

Dupree v. Younger, Case Number 22-210 (May 25, 2023) addresses the preservation of legal issues for appellate review. In Dupree, the U.S. Supreme Court found that a summary judgment motion “allows the district court to take first crack at the question that the appellate court will ultimately face: Was there sufficient evidence in the trial record to support the jury’s verdict?” The court also found that “[b]ecause the factual record developed at trial supersedes the record existing at the time of the summary judgment motion, it follows that a party must raise a sufficiency [of the evidence] claim in a post-trial motion in order to preserve it for appeal.” The court further found that a “repeat-motion requirement” would be an “empty exercise,” where the averse ruling is based on a purely legal issue because “a purely legal question is, by definition, one whose answer is independent of disputed facts” and, thus, “factual development at trial will not change the district court’s answer.” Applying this reasoning to the case at hand, the Dupree Court unanimously held that where an averse pretrial ruling is based on a purely legal issue, a litigant need not, to preserve the issue for appellate review, re-raise the issue at or after trial.

The Take Away.

Be careful! While Dupree eliminates the need to re-raise averse rulings on purely legal issues; to avoid waiver, and preserve appellate review of fact-based issues, one must re-raise the fact-based issue(s) at trial and by post-trial motion.

Thanks to Charles “Chip” George for this post. Please contact Chip with any questions.

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Summary Denial of Summary Judgment (NY)

New York Labor Law, colloquially called the Scaffold Law, has been a windfall for plaintiffs. Under §240(1) of the law, owners and general contractors are strictly liable when a worker is injured due to a gravity related risk. The case of Henriquez v. Clarence P. Grant Hous. Dev. Fund Co., Inc. reminds us that there are still limitations and defenses to these expensive claims.

In Henriquez, plaintiff allegedly sustained injuries when a plank of wood fell on his head as he was dismantling a scaffold. He moved for summary judgment and was denied. The Second Department affirmed the denial.

To prevail in a falling object case, the court affirmed that the plaintiff must demonstrate that at the time the object fell, it was either being hoisted or secured, or required securing for the purposes of the undertaking. In addition, it must be shown that the object fell because of the absence or inadequacy of a safety device enumerated in the statute. In this case, plaintiff’s evidence failed to establish that the plank fell because of the absence or inadequacy of a safety device.

Plaintiffs often believe that the occurrence of a gravity-related accident will automatically lead to summary judgment. However, these are fact specific inquiries and summary judgment is never guaranteed. While comparative fault is not a defense to these actions, a question of fact may still be raised to defeat summary judgment.

Thanks to Mehreen Hayat for her contribution to this post. Please contact Heather Aquino with any questions.Read More

Failure to Appear Equals a Failed Case in NY

The court closed any potential loophole that a plaintiff trying to skip out on evaluations under oath (EUOs) in New York might use to prevent any repercussions from being brought against them as a result. The plaintiff in MLG Med. P.C. v Nationwide Mutual Insurance Company missed four EUOs before the defendant filed a motion to dismiss and for summary judgment.  The plaintiff responded by stating that the defendant did not act on the failure to show in a timely manner which means within thirty days from the second no-show by the plaintiff.  The court considered how the plaintiff responded to the previous notices and the multiple opportunities to allow the plaintiff to appear. The court emphasized that the focus should be on the failure to appear, not timeliness of the defense motion, when considering whether to grant a motion to dismiss for failure to appear for EUO. Rather, the spirit of the law to incentivize parties to show up to EUOs should be remembered.

Thanks to Jordan Joachim-James for her contribution to this post. Please contact Heather Aquino with any questions.Read More

Lack of Constructive Notice Requires Constructive Evidence

The second judicial department recently reaffirmed its standing on the “lack of constructive notice” defense in a snow and ice slip and fall that happened on New York City subway stairs in 2018. Often used as a defense in premises liability cases, the defense of constructive notice is widely used by defendants to show that they lacked the type of notice that would make them liable for the existence of a certain condition. Here, in Islam v. City of New York, the court stated that in order for lack of constructive notice to be a provable defense, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599; see Ahmetaj v Mountainview Condominium, 171 AD3d 683, 684).

“A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it” (Miller v Terrace City Lodge No. 1499, Improved Benevolent Protection Order of the Elks of the World of Yonkers, N.Y., Inc., 197 AD3d at 644; see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838). In the case here, defendants City of New York and the New York City Transit Authority moved for summary judgment on the basis that they did not have actual or constructive notice of the hazardous condition that caused plaintiff to slip. This court held that since the action was predicated on a snow and ice condition, “the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell” (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599) Defendants here only pointed to general cleaning and inspection practices which were insufficient to establish a lack of constructive notice.

Thanks to Dominika Rybaltowski for her contribution to this post. Please contact Heather Aquino with any questions.Read More

Insurer Not Liable for Supplemental Spouse Liability (NY)

In New York, the Insurance Law requires motor vehicle insurers to notify policyholders about the availability of Supplemental Spouse Liability (SSL) coverage. In Levy v. New York Central Mutual Fire Insurance Company, the Westchester County Supreme Court addressed whether New York Central had notified the plaintiff about the availability of SSL insurance. The plaintiff, driving his car, accidentally struck his wife in a driveway. The plaintiff’s wife filed a claim against the plaintiff to New York Central, alleging she was injured due to the plaintiff’s negligence. New York Central informed the plaintiff’s wife her claim would not be considered as there was no SSL coverage. The plaintiff filed two causes of action: one alleging that New York Central failed to provide notice and the other alleging that New York Central was liable for breach of contract by not providing coverage to the plaintiff.

The plaintiff claimed that the SLL notice failed to comply with the notification requirements. The Court stated “As set forth above, the SLL notice was partially bolded, alerting plaintiff of an important notice. There is no requirement for the entire page to be bolded. Although the SLL notice was not page 1 of the 89-page document, it was page 1 of one of the various notices in the insurance packet. A look at the insurance policy indicates that every new section of the policy starts with page 1 and continues for however many pages address that topic. This does not conflict with 11 NYCRR § 60-1.6 (b) (3), which provides flexibility for the term premium notice. In addition, while not set forth in the decision, the sample notification provision, provided under 11 NYCRR § 60-1.6(b)(5) is identical to what New York Central provided to plaintiff in the policy. Even if it was not identical or did not contain the bolded and all capital title of Supplemental Spousal Liability Coverage, the regulation itself states that an equivalent may be used.”

New York Central established that it complied with the SSL notification requirements. This ruling serves as a reminder of the importance of thoroughly reading insurance policies and their coverage.

Thanks to Seamus Rooney for his contribution to this post. Please contact Heather Aquino with any questions.

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Landowner Not Required To Remove Snow From Every Inch Of Property (PA)

In January 2020, plaintiffs Janet and Richard Hinerman arrived at he airport to pick up their rental vehicle on the premises. Plaintiffs realized the car was in a separate parking lot, “located farther from the terminal building and separated by a grassy area from the lot on which they were standing.” Hinerman v. Westmoreland Cnty. Airport Auth., 2023 WL 4002424, at *1 (Pa. Commw. Ct. June 15, 2023). Additionally, a driveway and paved walkway, covered by no snow, connected the two parking lots.

Rather than using the cleared walkway, Janet Hinerman crossed the snow-covered grass area when her “feet stumbled into a depression in the ground, several inches deep, which had been obscured by the snow cover.”

The Hinermans brought a negligence action against the airport for damages Janet Hinerman sustained as a result of her fall. The Court affirmed the trial court’s grant of summary judgment, holding that the snow, rather than the depression in the ground, “due to its inherent tendency to cover uneven patches of ground or other tripping hazards, constituted the open and obvious danger.. Furthermore, the Court reasoned that “the Hinermans elected to forego the walkway and walk instead across an unimproved area that had not been intended for pedestrian use.”

This case stands for the proposition that defendants cannot be subject to premises liability when “the uncertainties inherent in walking on snow-covered ground are [open and] obvious.” Additionally, plaintiffs must be mindful that “[b]y their very nature, unimproved areas of land contain defects that may result in tripping or falling when being crossed on foot.”

Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions.Read More