Summary Judgment

Is Being Free Of Fault Necessary To Be Awarded Summary Judgment On Liability In An Automobile Case? (NY)

Though automobile accidents, large and small, are things we try to avoid at all costs, sometimes they do happen. If there is competing testimony in a case as to how a car accident did happen, summary judgment on liability may be ruled out. Recently, in Golovnya v. Artemchenko, 210 A.D.3d, (2d Dep’t November 30, 2022), a defendant, who was awarded summary judgment on liability by the lower court, had it taken away on appeal for failing to establish, prima facie, entitlement to judgment as a matter of law because she did not demonstrate freedom from fault in the happening of the accident. The Court reasoned that proximate causation could only be decided as a matter of law when only one conclusion could be reached from the facts. Here, the Court considered the deposition testimony of the plaintiff and defendant which illustrated conflicting explanations of the accident. Such conflicting explanations pointed to the possibility of more than one proximate cause of the accident, and it is the task of the trier of fact to determine the issue of proximate cause. It was in light of the “conflicting testimony regarding the manner in which the accident occurred” that the defendant failed to eliminate triable issues of fact. Neither party was awarded summary judgment on the issue of liability. This case is a reminder of the importance of the element of proximate causation, comparative negligence, and factual particularity. Please contact John Diffley for questions about this article.Read More

Summary Judgment Denied For Vehicle Struck From Behind Where Proximate Cause Was An Issue (NY)

The general rule in New York for rear-end accidents with a vehicle that is stopped or stopping is that there is a rebuttable presumption of negligence on the part of the driver that hits the vehicle in front of them. Accidents involving multiple vehicles can involve competing testimony and questions of fact that can make summary judgment difficult. For example, in Houslin v. New York City Tr. Auth., plaintiff was a passenger in a vehicle which was struck by another vehicle, then collided with the rear of a bus owned by the MTA and NYC Transit Authority. The Transit defendants moved for summary judgment on the basis that the bus was struck from behind and therefore they had no liability. The Supreme Court denied the motion on the basis that fact issues existed as to the proximate cause of the accident and liability of the Transit defendants. The Appellate Division, Second Department affirmed, finding that the Supreme Court properly denied the Transit defendants’ motion, as “there can be more than one proximate cause of an accident.” The Court found that given the conflicting deposition testimony as to the cause of the accident, issues of fact remained as to whether the bus had been operated negligently, and if so, whether that negligence contributed at all to the accident. The takeaway from the Houslin case is that summary judgment is not guaranteed in a rear-end hit case where there is conflicting deposition testimony and evidence that the driver struck from behind had some degree of negligence in the accident. Thank you to Rebecca Pasternak for her contribution to this post. Should you have any questions, please contact Andrew Gibbs.Read More

What Is A Passageway Under NY Labor Law?” (NY)

When a plaintiff alleges a Labor Law 241(6) predicated upon a New York City Rules & Regulations code, the plaintiff must establish a prima facie case that the NYCRR is violated. For example, in Stewart v. Brookfield Off. Props. Inc., 2023 NY Slip Op 00226 (2d Dep’t January 18, 2023), the plaintiff allegedly fell at a construction site while installing a lighting fixture. Plaintiff subsequently commenced a lawsuit against the defendant and depositions were conducted. Plaintiff testified at his deposition that he stepped off of a ladder and immediately tripped on a raised portion of the concrete floor. Thereafter, defendants moved for summary judgment arguing that there was no labor law violation because the plaintiff’s injury did not occur on a passageway, which is a predicate to proving a violation. 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors to keep all passageways free of obstructions which could cause tripping, is inapplicable because the site where the plaintiff allegedly tripped was not a passageway. Specifically, the Court stated, “In order to establish liability under Labor Law § 241(6), a plaintiff must “establish the violation of an Industrial Code provision which sets forth specific safety standards,” and which “is applicable under the circumstances of the case.” The lower court held, and the second department recently affirmed, that the defendant’s established the plaintiff’s injury did not occur in a passageway and therefore, there was no NYCRR violation. Accordingly, summary judgment was granted to the defendant. Thanks to Lauren Howard for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Defendants Bear Burden To Show Alleged Sidewalk Defect Substantial And Not the Cause Of Plaintiff’s Fall

In its November 21, 2022, decision Hawkins v. Terence Cardinal Cooke Health Care Ctr. (2022 N.Y. Slip Op. 33914), the Supreme Court, New York County denied defendant’s motion for summary judgment which was based upon the plaintiff’s inability to identify where she fell or the defect that caused her accident. The Plaintiff alleged that while she was walking on Fifth Avenue she fell at 1259 Fifth Avenue, and after the defendant denied ownership of that location, amended the pleadings to 1249 Fifth Avenue. The Court in coming to its conclusion looked at precedent that held a defendant was not entitled to summary judgment simply because a plaintiff could not say with certainty that an elevation in the sidewalk was the reason for a fall, but that it was the defendant’s burden to show that the alleged sidewalk defect was not the cause of plaintiff’s fall (Tiles v. City of New York, 262 A.D.2d 174 (1st Dept. 1999)), and that any inconsistencies in testimony would be left for a trier of fact (Narvaez v. 2914 Third Ave. Bronx, LLC, 88 A.D.3d 500, 501 (1st Dept. 2011)). The Court, further, provided a detailed resuscitation of the applicable, well-known statutes that control in such circumstances. Specifically, New York City Admin. Code§ 7-210(a) and (b) that require the owner of real property to maintain the abutting sidewalk in a reasonably safe condition and imposes a nondelegable duty upon the owner for any injury for a failure to do so. Failures to maintain the sidewalk in a reasonably safe condition include the negligent failure to install, construct, reconstruct, repave, or repair the sidewalk. Moreover, the Court looked to the New York City Department of Transportation Highway Rules (34 RCNY § 2-09(5)(iv)) and a further provision of the New York City Administrative Code, Section 19-152 which govern the seriousness of sidewalk defects. Both statutes define a “substantial defect” as a trip hazard where the vertical differential between adjacent flags is greater than or equal to 1 /2″ or where a flag contains one or more surface defects of one inch or greater in all horizontal directions and is 1 /2″ or more in depth. In denying the defendant’s motion for summary judgment, the Court looked to the testimony and affidavit of the plaintiff, witness affidavits, and plaintiff’s engineering affidavit and report that showed a 2 ¼ inch height difference in flags where the plaintiff alleged she was injured. This case serves as a reminder of the clear, quantifiable nature of sidewalk defects that can expose property owners to liability and the well-established law concerning the duty of a landowner to maintain the sidewalks abutting their property. Please contact John Diffley with any questions.Read More

Appeals Court Remands Dispute Due to Unknown Facts Concerning Valuation of Damages (PA)

The Superior Court of Pennsylvania recently held that a property insurance dispute concerning “soft costs” following water damage must, in the absence of policy definitions, be resolved with the trial court delineating whether specific expenses fall into the category of “rental loss,” “extra expense,” “soft cost,” or another type of claim. In Post River Rd., LLC v. Aspen Specialty Ins. Co., the case involved a dispute between the developers of a New Jersey apartment complex and the insurer of that complex. The complex was damaged when a pipe burst and water flooded finished and unfinished units within the complex. The question before the court was whether certain “soft costs” were covered by the property insurance policy issued to cover the complex. The insurer paid approximately $250,000, on the basis that “soft costs” should be calculated within the line item designated “business costs.” The insureds, on the other hand, argued for an expansive reading of “soft costs” that would include a total of $1.5 million in mortgage interest, payroll, insurance, real estate taxes, and advertising expenses. The insured developers sued the insurer for breach of contract, seeking the difference between the $1.5 million demand and the $250,000 payment. The trial court held that that the definition of “soft costs” was not within the scope of the policy’s appraisal provision. The insured developers appealed, in part based on the argument that the trial court conflated their claims for “soft costs” with “extra expenses” that were not at issue in the lawsuit. On appeal, the Superior Court openly questioned why this litigation could provide any resolution as to the distinction between “soft costs” and “extra expenses” when the developers’ argument was anchored in the idea that “extra expenses” was “wholly unrelated” to the complaint. The Superior Court remanded the case to the Court of Common Pleas for determination of the proper value of “soft costs,” “lost rents,” and “extra expenses.” The Superior Court noted, importantly, that the trial court would be tasked with resolving “which expenses constitute a rental loss, ‘extra expense,’ ‘soft cost,’ or other type of claim.” Thanks to Jason Laicha for his contribution to this article.  Should you have questions, contact Matthew Care.  Read More

Can A Verdict Render An Appeal Moot? (NY)

In a noteworthy decision, the Court of Appeals recently held that where a triable issue of fact is litigated and a final verdict reached, that issue of fact is rendered moot on pending appeal.  Meaning, if 1) a party moves for summary judgment on liability, 2) that motion is denied, 3) the movant appeals that decision, and 4) a trial verdict decides liability before the appeal is heard, that verdict becomes the law of the case, and the appeal is rendered moot.  This is a big deal. The recent decision of Bonczar v. American MultiCinema Inc., 38 N.Y.3d 1023, 1025, 188 N.E.3d 1000, reargument denied, 38 N.Y.3d 1170, 195 N.E.3d 526 (2022), presented a plaintiff who sought damages against the defendant for violating Labor Law §240(1) and moved for partial summary judgment on that claim. While the lower court granted plaintiff’s summary judgment motion, the Appellate Division reversed finding issues of fact as to whether a statutory violation occurred.  Subsequently, plaintiff’s Labor Law §240(1) was brought before a jury. At the conclusion, the jury held in favor of the defendant finding that plaintiff’s acts were in fact the sole proximate cause of his injury. The Appellate Division affirmed the jury’s verdict on appeal. Thereafter, plaintiff brought both the order denying his partial summary judgment motion and the order affirming the jury’s verdict before the Court of Appeals. The Court of Appeals held that pursuant to CPLR 5501(a) the denial of plaintiff’s summary judgment motion may be reviewed on appeal only if the nonfinal order necessarily affects the final judgment. In a matter of first impression, the court explained that to determine whether a nonfinal order necessarily affects the final judgment, the question is: “whether the nonfinal order necessarily removes a legal issue from the case so that there is no further opportunity during the litigation to raise the question decided by the prior non-final order.” The court explained that here, when the Appellate Division reversed the plaintiff’s motion for summary judgment, finding issues of fact, that nonfinal order did not remove any issues from the case; rather, it was left undecided. Instead, the parties had the opportunity to litigate those issues at trial, and in fact did so.   Therefore, the Court of Appeals held that the Appellate Division’s order denying plaintiff summary judgment did not necessarily affect the final judgment and thus, the Court of Appeals could not review it now on appeal. The decision is a big deal, because if a trial takes places while a summary judgment appeal is still pending — which can happen — the verdict trumps the appeal, and therefore.  Bonczar significantly reduces the leverage held by the appealing party in the scenario described above.    To that end, we recently attended a CAMP Conference at the 2nd Department, and the presiding judge was pressing the importance of Bonczar, to further incentivize settlement to all parties. Thanks to Gabi Scarmato for her contribution to this post.  For any questions about Bonczar, or how we expect it will be applied in the future, please contact Brian Gibbons.  Read More

Readily Observable (NY)

In a recent decision, Williams v. E And R Jamaica Food Corp., the Second Department held that ” a condition is open and obvious if it is ‘readily observable by those employing the reasonable use of their senses, given the conditions at the time of the accident.” The Appellate Court granted defendant’s appeal in matter where plaintiff sustained personal injuries as a result of tripping and falling on a rolled up mat in the supermarket. The Appellate Court held that the defendant established entitlement to summary judgment by submitting evidence that the rolled-up mat was known to plaintiff prior to the accident as it was open and obvious, and thus was not inherently dangerous.  Thanks to Marium Sulaiman for her assistance with this article.  Should you have any questions, contact Tom Bracken.Read More

Summary Judgment Without Deposition discovery Permitted In NY Labor Law Case

Courts often deny early summary judgment motions on the basis that they are premature pending completion of discovery on the issues in dispute. In Lapota v. PPC Commercial, LLC, the Appellate Division, First Department took a different approach in examining a trial court’s decision to deny plaintiff’s early motion for summary judgment as to his Labor Law §240 (1) claim against the defendant. The Court based its determination on affidavits of the plaintiff and his co-worker which stated that plaintiff’s accident occurred when an unstable ladder he was using, which was missing rubber feet, shifted and caused plaintiff to fall. The work performed by the plaintiff was covered under Labor Law section 240 (1). In reversing the lower court’s decision, the First Department rejected defendant’s argument that plaintiff’s motion was premature since depositions had not been taken. The Court reasoned that though depositions were not taken, summary judgment was not precluded since the defendant failed to show that discovery might lead to facts that would support its opposition to the motion and that facts essential to its opposition were exclusively within the knowledge of the plaintiff. The Court did not agree with defendant’s argument that plaintiff’s deposition testimony might further illuminate issues raised by the affidavits. The Court reasoned that mere hope that evidence sufficient to defeat summary judgment may be uncovered during discovery was insufficient to defeat summary judgment. This case serves as a reminder of the vulnerability of defendants under the Labor Law and the importance of conducting prompt discovery in Labor Law cases where the possibility of early motion practice exists. Please contact John Diffley with any questions.Read More

Court Finds Defendants Did Not Exacerbate Hazard Though Engaged In Snow Removal During Storm

In Keeney v. Hempstead Turnpike, LLC, et al., the plaintiff appealed from an order granting summary judgment to defendant/second third-party plaintiff, Stop and Shop Supermarket Company, LLC (“Stop & Shop”), to defendant/third-party plaintiff, Hempstead Turnpike, LLC (“Hempstead Turnpike”), the second third-party defendant, S & S Levittown, LLC (“S & S”), and, on a separate motion, granted summary judgment to third-party defendant, East Coast Lot & Pavement Maintenance Corporation (“EC Lot & Pavement”) dismissing the complaint as against the defendant/third-party plaintiff, Hempstead Turnpike.

Plaintiff slipped and fell on snow on a sidewalk in front of a store operated by Defendant Stop & Shop. The plaintiff sued Stop & Shop and the owner of the property, defendant Hempstead Turnpike, which in turn commenced a third-party action against EC Lot & Pavement, a snow removal contractor. Stop & Shop commenced a second third-party action against S & S, the holder of the ground lease for the property.

The Court examined the facts under the now well-settled storm-in-progress rule citing that a property owner, tenant in possession, or, where relevant, a snow removal contractor is not liable for accidents caused by snow or ice that accumulates during a storm until sufficient time since a storm’s cessation has passed to allow the opportunity to mitigate any hazards caused by the storm. The Court noted, however, that if a landowner or tenant in possession decides to remove snow during a snowstorm, then, in such an instance, the landowner and tenant in possession must act with reasonable care not to create a hazardous condition or make worse a hazardous condition created by the storm.

Though the plaintiff in the underlying action claimed the sidewalk looked like someone removed snow earlier in the day with parts of it having melted spots, did not have no salt or sand on it, had about ½ an inch of snow where the plaintiff slipped, and the parking lot was salted and sanded, the defendants here successfully established that their efforts to remove snow and ice from the sidewalk during the storm did not create a hazardous condition or exacerbate the natural hazard caused by the storm.

This case serves as a reminder of the potential liability exposure of owners and tenants in possession along with those they contract with, such as a snow removal contractor, when attempting to ameliorate a snowy condition while snow is still falling from the sky, as well as, the factual depth and development necessary for the defense of such cases.

Should you have any questions, contact John Diffley.Read More

WC Bar Extends To Corporate Relatives (PA)

The Superior Court of Pennsylvania recently held that the workers’ compensation bar extends to provide immunity to an entity who managed and owned the business that employed the injured plaintiff at the time of his injury. However, the fact pattern is rather unique, so the result does not necessarily change the current legal landscape.

The plaintiff in the case was injured by heavy machinery while working on a construction site. The defendant construction company held a general commercial liability insurance policy for the machinery in question. Importantly, the plaintiff was employed by an LLC that was co-owned by defendant construction company and another individual. The trial court granted summary judgment for the defendant on the grounds that (a) the plaintiff’s suit was barred by the employer immunity provision of the Workers’ Compensation Act (“WCA”) and (b) the plaintiff’s suit was barred pursuant to the co-employee immunity provision of the WCA.

Because the defendant did not directly employ the plaintiff and did not exert exclusive control over the LLC that employed the plaintiff, the Superior Court concluded that there was a genuine issue of material fact as to whether the defendant was the plaintiff’s “employer” under the WCA. Thus, the Superior Court disagreed with the trial court’s first ground for summary judgment.

However, the Superior Court cited the Supreme Court of Pennsylvania, which has held that the immunity granted by the WCA to workers to protect them from common-law suits filed by their injured co-workers is based upon the same underlying immunity that the WCA affords to employers. In this case, the Superior Court held that co-employee immunity under the WCA is not confined to rank-and-file workers but extends to the managers and executives of an employer and even individuals with an ownership interest in the employer. The Superior Court held that the defendant construction company was the plaintiff’s co-employee under the WCA and, therefore, was entitled to immunity from the plaintiff’s lawsuit. Enterprising attorneys should therefore look at the corporate constellations to determine if WC immunity is an appropriate defense.

Thanks to Jason Laicha for his contribution to this article.  Should you have any questions, please contact Matthew Care.

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