Replacing A Neighbor’s Sidewalk Flag Does Not Create A Duty to Maintain the Sidewalk
In Montalbano v 136 W. 80 St., the plaintiff fell on a raised sidewalk flag and sued the owners of the two adjacent properties because it was unclear who was responsible for that area of the sidewalk where he fell. Initially, Callanan thought he owned that area of the sidewalk because on two prior occasions he had replaced the sidewalk in front of his property, including the elevated flag that caused the plaintiff to fall. Also, Consolidated Edison had installed a gas line for Callanan’s building and left an oil cap in the flag. However, a survey revealed that the sidewalk flag actually abutted Owners Corp.’s property. As such, the Appellate Division found that Callanan was entitled to summary judgment. The Appellate Division rejected Owners Corp.’s argument that Callanan’s actions in making prior repairs constituted a special use of the sidewalk because there was no evidence suggesting that any such special use caused the claimed defect. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_04161.htmRead More
0
Plaintiff Recovers Lost Earnings Despite His Expert’s Failure To State Plaintiff Can’t Work
In Abrahamsen v JMK Bldg. Corp., the plaintiff, a carpenter, was injured when he fell through an opening in the floor that had been covered by a piece of unsecured plywood. After the close of evidence, the trial court denied the plaintiff’s request to charge the jury as to past and future lost earnings on the ground that the plaintiff had not produced expert testimony opining that the plaintiff could no longer work because of his injuries. The plaintiff had conceded that he had not looked for work since the accident. However, the Appellate Division held that the trial court erred and ordered a new trial on damages. In finding that the plaintiff set forth sufficient evidence to warrant a jury charge regarding lost earnings, the court emphasized that the plaintiff met this burden with his testimony that he couldn’t work; a psychologist’s testimony that the plaintiff was “effectively unemployable” as a result of his injuries and his learning disability; the testimony of the plaintiff’s orthopedic surgeon that the plaintiff’s injury was permanent and his prognosis was poor,;and the parties’ medical experts agreed that the plaintiff was physically unable to work as a carpenter as a result of the subject accident.
http://www.nycourts.gov/reporter/3dseries/2011/2011_08889.htm
Thanks to Bill Kirrane for his contribution to this post.
Read More
0
Co-Worker’s Affidavit Sufficient To Defeat Summary Judgment in Labor Law Case
In Silva v. FC Beekman Associates, LLC, the plaintiff was injured when he fell 14 feet from a scaffold while working in the elevator shaft of a high rise building in Manhattan. The plaintiff sued the owner of the building and general contractor alleging a violation of Labor Law 240(1 based on a claim that there were no railings or safety net around the scaffold he was working on and he was not provided with a harness. At the close of discovery, the plaintiff moved for summary judgment. The defendants opposed the motion by providing an affidavit from the plaintiff’s co-worker, James Kern, who stated that he was working with the plaintiff and the scaffold had railings on two sides. However, Kern did not witness the accident. The Supreme Court, Queens County granted the plaintiff’s motion, holding that the affidavit was hearsay because Kern did not state that both railings were in place at the time of the plaintiff’s accident. The Appellate Division, Second Department reversed the lower court’s decision, holding that Kern’s affidavit was based on his personal observations and the fact that he did not specifically state that the railings were present “at the time of the accident” was not dispositive. The Court further noted that the statement, when read in proper context and in its totality, is clear that Kern was referring to the time of the subject accident. Accordingly, Kern’s affidavit created a question of fact that precluded summary judgment. Thanks to Ed Lomena for his contribution to this post. For more information about this post, please contact Nicole Brown at nbrown@wcmlaw.com. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01236.htmRead More
0
New York’s Highest Court Finds Owners and Contractors Strictly Liable for Damage to Adjoining Buildings
The Court of Appeals recently issued a decision in Yemen Corp. v. 281 Broadway Holdings addressing the Administrative Code of the City of New York section 27-1031(b). Importantly, the Court determined that the statute imposes absolute liability on owners and contractors whose excavation work causes damage to an adjoining property. Yemen is a property damage case that involved allegations that the defendant’s excavation (18 feet below curb level) shifted the plaintiff’s building out of plumb due to undermining of the existing footings and a loss of soil. Administrative Code 27-1031(b) provides: When an excavation is carried to a depth of more than ten feet below the legally established curb level the person who causes such excavation to be made shall, at all times and at his or her own expense, preserve and protect from injury any adjoining structures, the safety of which may be affected by such part of the excavation as exceeds ten feet below the legally established curb level provided such person is afforded a license to enter and inspect the adjoining buildings and property. In effect, this statute finds the duty to protect adjacent buildings during excavation to be absolute and unqualified. Accordingly, in New York City, those who undertake excavation work rather than those whose interests and neighboring land is harmed by it should bear the cost if damage occurs. The fact that a building may be in poor condition will not raise an issue of fact as to causation under the statute, although it is still relevant with respect to the measure of damages. Thanks to Bill Kirrane for his contribution to this post. For more information about this post, please contact Nicole Brown at nbrown@wcmlaw.com. Read More
0
In NJ MVA Case, “Discovery Rule” Inapplicable Were Plaintiff Was Aware Of Worsened Injury Prior To Expiration Of The Statute Of Limitations
In Fabiano v. Pagalilauan, the plaintiff filed suit for injuries sustained in a motor vehicle accident on April 16, 2008. An x-ray taken on the day of the accident revealed a large, benign bone tumor on the plaintiff’s right knee right knee. Several months later, the plaintiff underwent an MRI on October 11, 2008 that revealed a malignant transformation of the bone tumor. He eventually underwent surgery to remove the tumor, but there was no biopsy to confirm the malignancy and it was never confirmed that the alleged malignancy was casually related by the motor vehicle incident. On July 12, 2010, the plaintiff filed a suit seeking damages for the malignant transformation of the bone tumor and the resulting surgery. The defendant moved to dismiss the complaint arguing that the applicable two-year statute of limitations had expired. The defendant’s motion was granted and the plaintiff appealed arguing that the “discovery rule” applied. Specifically, the plaintiff claimed that he had two years from October 11, 2008, the date the malignancy was discovered, to file his complaint. The Appellate Court disagreed and upheld the trial court’s dismissal of the plaintiff’s complaint finding that the discovery rule did not apply in this case since the plaintiff was aware of the alleged malignant transformation before the applicable two-year statute of limitations for bodily injury stemming from a motor vehicle accident expired. The court further noted that there was no medical evidence confirming the malignancy and causally relating it to the accident. Lastly, the court noted that a cause of action for automobile negligence ordinarily accrues when the accident takes place, even if the initially sustained injuries later turn out to be more serious then originally believed. http://www.judiciary.state.nj.us/opinions/a2132-10.pdf Thanks to Heather Aquino for her contribution to this post.Read More
0
“Regular Use” Auto Exclusion Upheld in NJ
Richard Vann sought med-pay coverage from Mercury Insurance Group, his personal insurance carrier for two automobiles that he owned, after he was injured in a car accident. After the court granted summary judgment in favor of Mercury, Vann appealed.
Vann was injured while driving a truck belonging to Vann Trucking, a company owned and operated by his father. Vann Trucking owned three trucks, including the Mack CH600 that Vann was driving at the time of his accident. At his deposition, Vann explained that he drove that particular truck 90% of the time while working for Vann. Moreover, he typically parked the truck close to his home so that it was easily accessible and drove the truck between three to five days per week.
The Mercury policy provided med-pay coverage for injuries sustained while using “a highway vehicle not owned by or furnished or available for the regular use of the named insured.” Mercury disclaimed coverage due to the “regular use” exclusion under the policy.
The appellate court upheld the trial court’s decision, finding that the policy exclusion applied to the particular circumstances of this case. Specifically, the use of the subject vehicle as described by Vann during his deposition constituted a “regular use” under the policy.
Thanks to Heather Aquino for her contribution to this post.
0
Landlord’s Duty Arises From Ability And Opportunity To Control Conduct
In Banner vs. New York City Housing Authority, the infant plaintiff was injured when, while sitting on his bicycle in the courtyard at the rear of the defendant’s building, he was hit in the eye by a bottle that was allegedly thrown from the roof of the building. The plaintiffs allege that NYCHA was negligent in failing to secure the roof and in allowing persons to use it in a dangerous and defective manner. The court noted that “a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances.” This duty includes an obligation “to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person. However, this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so.”
The defendant submitted affidavits from its supervisor of caretakers and a professional engineer establishing that the defendant was required to keep the door to the roof unlocked for fire safety purposes. The testimony of the infant plaintiff established that neither he nor his friends actually saw a person on the roof throw a bottle, and that the alleged perpetrator was unknown, making it possible that the perpetrator was a resident of the building who would have had access to the roof despite any amount of security provided. The plaintiffs failed to raise a triable issue of fact that the defendants had the ability and opportunity to control the conduct through the exercise of reasonable measures, and that the failure to have done so was a proximate cause of the injuries alleged. As such, summary judgment was granted to the defendant.Thanks to Sandy Debbas for her contribution to this post.
Read More
0
Can’t Use Facebook To Serve Process
Last week we posted that NY state courts are permitting discovery of Facebook accounts in certain contexts. This week, a federal court judge in the Southern District of New York rejected a request to use Facebook as an alternative means of serving process on a hard to find third-party defendant. In Fortunato v. Chase Bank, Chase wanted to use Facebook to locate and serve the third-party defendant who had a history of providing inaccurate addresses. Chase argued that this history prevented its investigators from locating the sought after third-party defendant through normal channels. Although the judge agreed that service by normal means was impractical, he would not allow Chase to use Facebook to locate and serve the third-party defendant stating that Chase had not set forth any facts that would give the court some degree of certainty that the Facebook profile their investigator found was in fact maintained by the third-party defendant. The court, instead, allowed service by publication in four local newspapers to cover areas where the third-party defendant had listed addresses. If you have any questions or comments about this post, please email Nicole at nbrown@wcmlaw.com. Fortunato v. Chase Bank USARead More
0
NJ: Counsel’s Inflammatory Comments Do Not Warrant A New Trial
Barbara Jones filed suit against Albert Pannici for injuries sustained in a motor vehicle accident. In turn, Pannici filed a third-party complaint against a phantom driver he claims caused the accident. Jones’ insurer, Allstate, intervened due to their potential liability under the Uninsured Motorist provision of Jones’ automobile insurance policy. At trial, Allstate’s attorney made several statements to suggest that Pannici was not telling the truth as to the cause of the accident. Specifically, in his opening and closing statements, counsel alleged that Pannici became nervous after the accident and lied about the phantom vehicle. Additionally, during his cross-examination, counsel attempted to elicit testimony to suggest that Pannici’s status as a former police officer made it easy for him to concoct a story about the phantom vehicle. Pannici’s attorney did not object to any of the comments made. Ultimately, the jury returned a substantial verdict against Pannici. Pannici moved for a new trial, arguing that Allstate’s counsel’s comments in the opening, during the cross-examination and in summation led the jury to believe that something improper had occurred and that Pannici was not being truthful. The court disagreed with Pannici’s position and found that the comments made by counsel for Allstate did not amount to error so prejudicial as to require a new trial. Rather, the court found that there was sufficient evidence for the jury to reject Pannici’s version of the accident. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a4834-10.pdfRead More
0
Insurer Stays Out of the Penalty Box in NY’s Fourth Department
Raymond Pink, his wife Michelle, and Matthew Ricci were spectators at a youth hockey game when a fight broke out in the stands and Ricci assaulted Pink. The Pinks filed a personal injury suit seeking damages for injuries caused by Ricci. Ricci held a homeowner’s insurance policy through State Farm and notified State Farm of this claim. State Farm promptly sent Ricci a letter five days after receiving notice of the suit, reserving its right to deny and disclaim coverage. Nine days after receiving notice, State Farm advised Ricci that based on the question of coverage he had the right to select counsel to defend him at State Farm’s expense in the underlying action. Ricci declined to do so. Two years later, State Farm commenced a declaratory judgment action seeking a declaration of the rights of the parties under the homeowner’s policy. Ricci answered and alleged several counterclaims, most notably that State Farm had engaged in bad faith and improper conduct. State Farm moved for partial summary judgment to dismiss this counterclaim and several others. The trial court denied State Farm’s summary judgment motion as to the bad faith counterclaim. On appeal, Ricci did not submit any opposition, but the Pinks did. The Fourth Department ultimately granted State Farm’s summary judgment motion, stating that State Farm’s approach to clarifying its obligations under the policy was “not only permissible but advisable.” Addressing the two-year lapse between reserving the right to disclaim and filing the declaratory judgment, the court held that failure to disclaim in a timely manner is insufficient to establish bad faith. The court also noted that if State Farm had simply disclaimed coverage after two years instead of filing a declaratory judgment, the untimely disclaimer would have been ineffective with respect to the Pinks. Finally, the court noted that where a claim falls outside the scope of coverage afforded by the policy, no disclaimer is required. Thanks to Michael Nunley for his contribution to this post. http://www.nycourts.gov/courts/ad4/clerk/decisions/2012/06-15-12/PDF/0639.pdfRead More
0