Author: Lora H. Gleicher

No Fault Abuse Reexamined

The Court of Appeals recently addressed no fault abuse in reassessing three cases that dealt with allegations of “serious injuries” resulting from motor vehicle accidents. In Perl v. Meher and Adler v. Bayer, the Court reversed the Appellate Division, concluding that plaintiffs put forth evidence that was legally sufficient to make out their claims. In both instances, the plaintiffs had been initially examined by a physician who did not make contemporaneous quantitative measurements. Several years later, in preparation for trial, the physician made quantitative measurements regarding the plaintiffs’ limitation. The Court held that a physician who initially treats a patient need not make contemporaneous quantitative measurements since their primary concern is treating the patient. Taking the measurements years later – in preparation for trial – was deemed sufficient to meet the serious injury requirement. This decision clearly damages defendants’ abilities to obtain threshold dismissals, as it permits plaintiffs the opportunity to establish the existence of a serious injury years after their accident, in anticipation of trial, as well as in opposition to a defendant’s motion for summary judgment. On a positive note for defendants, the Court affirmed the dismissal of Travis v. Batchi, holding that a physician’s conclusion that a plaintiff has a “mild partial permanent disability,” absent a description of the disability, is insufficient to meet the serious injury standard.  http://www.nycourts.gov/ctapps/Decisions/2011/Nov11/206-208opn11.pdfRead More

Intent To Fill Open Trenches Trumps Labor Law Liability

In Salazar v. Novalex, the Court of Appeals looked to reason and logic when it limited Salazar’s ability to recover under Labor Law 240(1) and 241(6). While working at a construction site, Salazar stepped into a trench that was partially filled with concrete. He claimed that the trench should have been barricaded or covered to prevent his fall.  In dismissing the Labor Law 240(1) claim, the Court held that the installation of the protective device that Salazar suggested would have been contrary to the objectives of the work plan. Indeed, the trenches needed to be open in order to be filled with cement. The Court similarly dismissed the Labor Law 241(6) claim because the trench, even if considered a hazardous opening, was being filled with concrete at the time. Permitting recovery defied logic since the trench had to be open in order for the work to be competed.   http://www.nycourts.gov/ctapps/Decisions/2011/Nov11/200opn11.pdf

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Labor Law Victory In Name Only

In Russo v. Hudson View Gardens, Inc., 2012 NY Slip Op 00464, the First Department modified the trial court’s decision and awarded defendant Midboro Management summary judgment as to Russo’s Labor Law § 200 and common-law negligence claims. In doing so, the court noted that plaintiff’s allegations, stemming from the use of an A-frame ladder, were not viable against managing agent Midboro. The court emphasized that the record established that Midboro did not direct Russo’s work, nor did Midboro have actual or constructive notice of the allegedly unsafe condition. Midboro did not own the ladder in question, and Russo did not tell anyone about the allegedly unsafe condition, so as to establish notice on Midboro’s part. Nevertheless, regardless of this victory, the harsh reality of the statutory obligations imposed by Labor Law 240(1) and 241(6) remained, and are subject to trial by jury. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00464.htmRead More

E-Discovery: Cost Shifting Limited

In the recent First Department case of U.S. Bank Nat’l Assn, et al. v. GreenPoint Mortgage Funding, Inc., 2012 NY Slip Op 01515, plaintiff appealed from a New York County decision that required plaintiff to bear the cost incurred in the production of electronic discovery.  Prior to the First Department’s decision, New York courts generally required the party requesting the discovery to bear the cost.  This held plaintiffs back from making large scale demands for e-discovery because they would have to pay the cost involved with e-discovery.   This decision, following the well known Zubulake decision, held that “it is the producing party that is to bear the cost of the searching for, retrieving, and producing documents, including electronically stored information.”  Although cost shifting is permitted, the First Department follows the factors set forth in Zubulake, 217 FRD at 222, in deciding who bears the cost of production. Those factors are: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and, (7) the relative benefits to the parties of obtaining the information. The First Department states that the Zubulake factors are not a “check list,” but rather should be used as a “guide” by the trial court when determining whether or not the discovery request constitutes an undue burden or expense on the responding party.  Interestingly, the Court concludes that “the adoption of the Zubulake standard is consistent with the long-standing rule in New York that the expenses incurred in connection with disclosure are to be paid by the respective producing parties and said expenses may be taxed as disbursements by the prevailing litigant.” It remains to be seen whether tens of thousands of dollars in e-discovery expenses can be taxed against a losing plaintiff and, even if allowed, defendants will never be able to collect it.   However, the threat of taxing a losing plaintiff significant amounts of money in a judgment may still provide some deterrent to a plaintiff’s counsel seeking to use e-discovery as a weapon of mass discovery. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01515.htm  Read More

Vehicle Itself Must Be The Proximate Cause Of Injures For No Fault Law To Apply

In Cividanes v. City of N.Y., 2012 NY Slip Op 02179, plaintiff was allegedly injured when she stepped into a hole and fell after alighting from a bus owned and operated by the City defendants. The defendants moved for summary judgment, arguing that the plaintiff’s injuries did not meet the “serious injury” requirement of No-Fault Law. In affirming the lower court’s denial of the motion, the First Department held that No-Fault Insurance Law only applies if the vehicle is the proximate cause of plaintiff’s injuries. Here, plaintiff’s accident did not occur because of the bus, but rather, occurred outside the bus. Thus, the court held that: (1) the accident did not arise out of the “inherent nature” of the bus;  (2) the accident did not arise within the “natural territorial limits” of the bus, as plaintiff fell on the street; and, (3) the bus itself was not the instrumentality that produced the alleged injury. As a result, plaintiff did not have to meet the “serious injury” threshold requirements, thus limiting a defendants ability to succeed on a threshold summary judgment motion where the vehicle in question was not the specific cause of the accident, but still seemingly related to the accident.  http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02179.htmRead More

Stilt Fall Does Not Trigger Labor Law 240(1) Claim

In a minor victory for defendants in the recent Richmond County decision of Garcia v. Mt. Airy Estates, Inc., the trial court dismissed Garcia’s Labor Law 240(1) claim due to the fact that there was no issue raised regarding the malfunctioning of his safety device – a pair of stilts.  Garcia, a dry wall laborer, wore stilts as he applied spackle to the ceiling of a garage.  While working on the stilts, he claimed that he fell because of debris on the floor.  The court held that there was no issue raised to suggest that the stilts failed to perform the function required of them by statute or that they failed to allow Garcia to safely perform his work at the required elevation.  All claims sounding in Labor Law 240(1) were dismissed despite the fact that Garcia was in fact working from a height. The court did permit Garcia’s Labor Law §§ 200 and 241(6) claims to proceed due to the allegation that debris on the floor caused his fall. http://www.newyorklawjournal.com/CaseDecisionNY.jsp?id=1202549405260  Read More

Expert Affidavit Trumps Speculation Defense

In Rodriguez v. Leggett Holdings, LLC, the First Department reinstated plaintiff’s complaint despite the fact that plaintiff was unable to identify the cause of his fall down a set of stairs. Although defendants established their prima facie entitlement to summary judgment since plaintiff’s deposition testimony revealed that he was unable to identify the precise cause of his fall, plaintiff’s expert engineering affidavit, which attributed various defects and building code violations (without specifically referencing the code sections or precise measurements taken) as the cause of the accident, was sufficient to raise a triable issue of fact as to whether the alleged defective conditions caused the fall. Chiseling away at the proposition that a defendant is entitled to summary judgment where a plaintiff’s claims are based on speculation and conjecture, the First Department held that in this instance, summary judgment was not appropriate because plaintiff was able to identify the general site of his fall, and his expert was then able to identify defective conditions on the stairway. Plaintiffs, who now have the ability to submit expert affidavits in order to defeat motions that may have once been favorably decided for the defense, will undoubtedly rely upon this case in the First Department. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04922.htmRead More

Permanent Structures Afforded Labor Law § 240 Protection

In Burton v. CW Equities, LLC, et al, , the First Department reversed the lower court’s denial of plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim. The plaintiff had fallen  from a permanent concrete walkway that provided access to the rear yard of a building under construction. The walkway extended over a 15-foot deep vaulted area below grade level and had no guardrails or barriers. In reversing the lower court, the First Department held that simply because the walkway was a permanent structure did not mean that it was not protected under Labor Law § 240(1).  Rather, since the plaintiff’s injuries were the direct result of a failure to provide adequate protection against a risk arising from a physically significant elevation differential, he was entitled to the protections afforded by Labor Law § 240. As for the Labor Law § 200 claim, the fact that the plaintiff’s injury did not arise from the method he used to perform his work, but from a dangerous condition, was not dispositive on the issue of defendant CW Equities’ control of the worksite. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05596.htmRead More

Cheerleaders Assume Risk Of Injury

In Kristina D. v. Nesaquake Middle Sch., the Second Department reversed the lower court’s denial of defendants’ motion for summary judgment and dismissed plaintiff’s complaint. In doing so, the Second Department reaffirmed the long standing precedent that one cannot recover for injuries sustained in recreational activities, for those commonly appreciated risks inherent in the participation of the activity. Plaintiff was an experienced middle school cheerleader, who was allegedly injured during cheerleading practice when she fell during the performance of a “shoulder stand,” a stunt she had performed many times in the past. Plaintiff sued the school district and cheerleading coach, alleging a failure to properly supervise the cheerleaders. The complaint was ultimately dismissed despite the Second Department’s acknowledgement that even if the risk is assumed, a school must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from “unassumed, concealed, or unreasonably increased risks.” In this instance, it was clear that plaintiff, an experienced cheerleader, assumed the risks involved in cheerleading and the performance of stunts. Moreover, the school made a prima facie showing that the plaintiff was adequately supervised. Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact nbrown@wcmlaw.com.  Read More

Health Club Escapes Liability for Unforeseen Sports Brawl

In Ullrich v. Bronx House Community Ctr., the First Department reversed the lower court and granted the defendants’ motion for summary judgment, holding that an assault by a fellow basketball player was an intentional and unforeseeable act of a third party, for which the defendants were not liable.  Plaintiff sustained injuries when another player punched him in the jaw. Based on the facts of the case, the assault was unprovoked, unanticipated, and could not have been prevented because it occurred so quickly. However, plaintiff argued that the assailant’s club membership should have been suspended prior to the incident because he had been involved in a dispute with other club members several months earlier, thereby putting the defendants on notice of his violent demeanor.  In granting the defendants’ motion, the First Department held that the notice was not sufficiently specific for the defendants to have reasonably anticipated the assault upon plaintiff. Rather, the incident was an intentional and unforeseeable act of the assailant. Thus, when participating in sports events, would-be plaintiffs should take note that they cannot necessarily blame a sports club for a hot headed player who assaults them. It is the offending player – not the “deep pocket” sports club – that they should be suing. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06730.htmRead More