Author: John Mulcahy

“Don’t Deal with Lawyers”

Lawyer Elana Glatt was married recently in Manhattan and has now sued her florist for $400,000 because he allegedly substituted pastel pink and green hydrangeas for dark rust and green. These substituted flowers apparently clashed with the linens, favor boxes, and the wedding cake. The cost of the flowers was $27,000. The florist responded to the suit by saying his father told him, “Don’t deal with lawyers. Maybe he was right, God bless his soul.” And on a personal note, as the father of three daughters, we will be happy with any color and any bloom available, and $27,000 is out of the question. http://www.nytimes.com/2007/10/16/nyregion/16flowers.html?_r=1&ref=todayspaper&oref=sloginRead More

Landowners’ Summary Judgment Motion Defeated By Its Own Lease Agreement

In Susanne Greis v. Eckerd Corporation et al, an “out-of-possession” landlord learned a hard lesson in not having precise language in its lease agreement. In this case, plaintiff slipped and fell on snow on a ramp leading to Eckerd’s store located within a shopping center owned by co-defendant, Mandarin Realty Company. Mandarin moved for summary judgment to dismiss Eckerd’s cross-claims since Mandarin claimed to be an out-of-possession landlord that had surrendered possession and control of the subject area to Eckerd. The trial court granted Mandarin’s motion. In reversing the trial court’s decision, the Appellate Division found that Mandarin failed to establish as a matter of law that it was an out-of-possession landlord because the lease agreement failed to support this claim. In particular, the lease agreement failed to delineate the subject ramp where plaintiff fell as part of the demised premises possessed by Eckerd. Another provision in the lease actually required Mandarin to keep all common areas clear of snow that pursuant to the lease included passageways, sidewalks and walkways. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07087.htmRead More

Repairs vs. Maintenance Under New York’s Labor Law

In Pakenham v. Westmere Realty, a New York appellate court recently addressed the difference between “repairs” and “routine maintenance” in the application of Labor Law §240. Pakenham, a service technician, responded to a call regarding a lack of heat at the Westmere Realty office after hours in the winter. While working, Pakenham fell from a ladder. The lower court found that the plaintiff’s work was “routine maintenance” and dismissed his labor law claim. The Appellate Division reversed and determined that the plaintiff’s work on a snow covered roof after normal business hours in the dark was a “repair,” and a protected activity under Labor Law §240. http://decisions.courts.state.ny.us/ad3/Decisions/2009/504889.pdfRead More

Failure to Retain Evidence Leads to Dismissal of Plaintiff’s Case

In Firemen’s Insurance Company of Washington v. Krenitsky, a New York judge held that the failure of the plaintiff to retain a key piece of evidence in a subrogation action warranted dismissal of the complaint. The case arose from a fire on July 11, 2004 in a Manhattan apartment building. After gaining access to the apartment and upon concluding that the stove was the source of the fire, the plaintiff’s expert advised the plaintff’s subrogor, the building owner, to retain the stove for future examination by interested parties. However, when the defendants requested an inspection of the stove during discovery, the plaintiff advised that the stove could not be found. The court granted the defendants’ spoliation motion based on the failure of the plaintiff to preserve the stove after the plaintiff was put on notice, based on its own expert’s report, that the stove held the key to the cause and origin of the fire. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50066.htmRead More

Plaintiff’s 241(6) Claim For Asbestos Exposure Unsupported By Industrial Code Part 12 Regulations

To mount a 241(6) claim, it must be properly supported by a violation of a concrete provision of Industrial Code, part 23. In Nostrom v. A.W. Chesteron Co., plaintiff commenced a wrongful death action due to plaintiff’s decedent’s exposure to asbestos in the workplace. While plaintiff’s complaint was pursuant New York State Labor Law 241(6), she solely relied upon two Industrial Code, part 12 regulations, 12 NYCRR 12-1.4(b)(3),(4) and 12-1.6(a). The landowner and general contractor defendants successfully moved for summary judgment in the trial court. On appeal, the Appellate Division, First Department, affirmed the lower court’s decision, ruling that it is the provisions of part 23 of the Indutrial Code that serve as the predicate for Labor Law 241(6) claims. The Court found that the Industrial Code part 12 regulations that plaintiff relied on do not support an action for owner/contractor vicarious liability under Labor Law 241(6) since part 12 (“Control of Air Contaminants”) gives no indication either that it was enacted pursuant to Labor Law 241(6) or that it contemplates owner/contractor vicarious liability. Moreover, the Court held that part 12 regulations cited by plaintiff were not sufficiently specific to support a Labor Law 241(6) claim for asbestos-related injury. Thanks to Robin Green for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_00581.htmRead More

Hard Driving Employer Not Liable for Exhausted Employee’s Tort

In Riley v. Keenan, the plaintiff was injured by a sleepy, drunk driver. The plaintiff sued the driver’s employer, claiming that the employer overworked the driver to the point of exhaustion and was thus responsible for the happening of the accident. The court threw out the claim, noting that the driver was not acting within the scope of his employment at the time of the accident. The court added that the driver’s choice to drink was an intervening act that broke any connection between work fatigue and the accident. www.judiciary.state.nj.us/opinions/a6054-06.pdfRead More

Sophie’s Choice

A plaintiff in Ocean County, New Jersey asked for a six-month delay in the start of her trial so that she could care for her gravely ill father in Florida. The court refused the request and dismissed the case with prejudice. The appellate court sympathized with the plaintiff’s “Sophie’s Choice” dilemma and restored her case to the trial docket. http://www.judiciary.state.nj.us/opinions/a4400-07.pdfRead More

NY’s High Court Tilting Toward Claimants

Jonathan Lippman became New York’s Chief Judge in January, 2009. After one year, it is now clear that he is moving the court to a more accepting and expansive point of view when rulling on personal injury claims. Lippman has already written decisions in several cases dealing with injured workers and, in each decision, has sided with the plaintiff. In one decision, Lippman found that a prior court ruling that prohibited an injured teacher’s right to sue New York City was too restrictive and he expanded the teacher’s avenues for recovery. In another case, he ruled that the trial court had too narrowly construed a law regarding a worker’s right to seek damages from his/her employer. In sum, Judge Lippman’s track record after his first year on the bench has been to expand plaintiffs’ rights of recovery rather than to follow the narrower rulings that came down over the last 16 years under his predecessor. Posted by Georgia Stagias. http://www.nytimes.com/2010/02/18/nyregion/18lippman.html?scp=1&sq=court%20of%20appeals&st=cseRead More

Fantasia’s Fall on the Ice

Fantasia Massey went to Newburgh, NY to visit her friend Michael Valerie on Sunday, March 11. The visit went well and Fantasia remained inside Mike’s apartment without once venturing outside until 9:30 p.m. on Thursday, March 14, when she felt the need to visit a local convenience store. Mike drove Fantasia to the store. He parked his car on the street in front of the store. Fantasia got out of the car and, she says, slipped and fell on ice on the sidewalk in front of the store. She fractured her ankle. She filed suit against the owner of the convenience store. http://www.courts.state.ny.us/reporter/pdfs/2010/2010_30238.pdf The defendant moved for summary judgment, supporting its motion with an expert affidavit and data that showed that the temperature at the time of the accident was 57 degrees and that it had been as high as 73 degrees earlier that day. The expert who interpreted this arcane data opined that there could not have been any ice on the sidewalk during Fantasia’s ill-fated trip outside the apartment. The plaintiff countered with her own affidavit, swearing that there was, indeed, ice on the sidewalk. Mike swore to the same. They produced photographs of ice on the sidewalk that they said they took two hours after the fall. The court in New York County denied the defendant’s motion, finding a question of fact about the existence of ice. Posted by Maju Varghese.Read More

Starbucks Tea Trumps McDonald’s Coffee

Rachel Moltner, age 76, stopped in at a Starbucks on the upper east side of Manhattan one winter’s day in 2008 for a hot beverage. Her barista poured her a venti-sized, 190-degrees Fahrenheit cup of tea, double-cupped it, and put on a lid. Ms. Moltner went to a table and was wrestling the lid off in order to add sugar, when she spilled the tea onto her leg and foot. From there, things really went downhill. Ms. Moltner required a skin graft to repair the burns to her leg and, during her stay in the hospital, she developed bed sores and then fell out of bed, fracturing her sacrum and herniating a disc or two. With visions of Stella Liebeck’s 1992 hot coffee lawsuit against McDonald’s no doubt in mind, Ms. Moltner sued Starbucks. She filed suit in state court in New York but Starbucks removed the case to federal court. The federal judge who reviewed the case dismissed it, saying that “no reasonable fact finder could conclude that the tea’s 190 F temperature took plaintiff by surprise.” http://caselaw.findlaw.com/us-2nd-circuit/1543460.htmlRead More