Summary Judgment

Landlord Not Liable For Repairs Unless The Lease Requires (NJ)

In McCauley vs. American Property Management Group, LLC, Plaintiff brought forth an appeal from a March 18, 2022 order granting Defendant Summary Judgment. William Marley is defendant’s principal and sole owner. Marley is employed by American Millwright and Rigging (AMR), a business that builds, repairs, and moves heavy machinery and equipment. Plaintiff worked at AMR as a mechanic and Marley was his boss. Marley claimed that AMR paid rent to defendant American Property Management Group, LLC, for the use of the property, paid the utilities, and was responsible for maintenance and repairs to the property. Plaintiff was working for AMR on defendant’s property. He and another employee were instructed by Marley to use a forklift to lift an extruder and place it on a flatbed truck. During the course of carrying out these instructions, an extruder fell over and struck Plaintiff’s leg. The area on which the forklift was operated was made of compacted gravel. AMR employees use that specific area on the property for loading activities because it is flat and free of potholes. Defendant American Property Management Group moved for Summary Judgment, claiming there as no factual dispute that AMR rented the property from defendant and performed all maintenance and repairs on the property. Defendant alleged that it did not owe Plaintiff a duty and was not liable for any injuries Plaintiff may have sustained while working on the property. The trial judge granted Summary Judgment in favor of Defendant, finding there was unrefuted testimony that AMR was responsible for the maintenance and repairs to the property. Additionally, the judge determined that the composition of the property was not a dangerous condition and that Plaintiff had not established Defendant was aware of any dangerous condition. Plaintiff appealed, asserting that the trial court erred in granting Defendant Summary Judgment because there were disputed material facts regarding the existence of a lease, the instructions to Plaintiff regarding the forklift, and whether there was a defective condition on the property. Relying on McBride v. Port Auth. of N.Y. & N.J., the Appellate Court held that the burden to make repairs falls upon the tenant in the absence of an agreement stating otherwise. In other words, in the absence of an agreement to make repairs, the landlord is under no obligation to do so. As such, the Appellate court held the facts that Plaintiff alleged were disputed were found to be immaterial and affirmed the trial court’s decision. Thanks to Steve Kim for his contribution to this article.  Should you have any questions, contact Matthew Care.Read More

One Inch Height Differential Can Be One Step Closer To Summary Judgment (NY)

When a plaintiff commences an action to recover damages for personal injuries involved in a trip and fall due to a height differential between a curb and a sidewalk, the condition must be actionable and not deemed trivial. For example, in Haber v. CVS Pharmacy, Inc., 2023 NY Slip Op 03002 (2d Dep’t June 7, 2023), the plaintiff alleged she tripped over a curb and sidewalk when walking at CVS Pharmacy, causing her to sustain injuries. Subsequently, plaintiff commenced a lawsuit against the defendant seeking to recover damages. Thereafter, after discovery concluded and depositions were held, the Defendant moved for summary judgment arguing the height differential or defect alleged between the sidewalk and the curb was physically insignificant and that the characteristics of the defect and surrounding circumstances did not increase the risk it posed. Further, Defendant relied on Plaintiff’s own testimony and photographs of the accident site, to establish the height was less than one inch, the incident occurred in the daytime hours under clear conditions and there were no crowds that obscured the plaintiff’s view of the sidewalk when she was walking on it. In cases like these, a property owner may not be held liable for trivial defects, over which a pedestrian might merely stumble or stub his toe or trip over. In determining whether a defect is trivial, the court examines factors such as the “width, depth, elevation, irregularity and appearance of the defect alongside the time, place and circumstance of the injury.” See, Trincere v. County of Suffolk, 90 N.Y.2d at 978. Here, the lower court held, and the second department recently affirmed, that the defendant’s motion for summary judgment dismissing the complaint should be granted because the defendant’s established the height differential was trivial and therefore not actionable. As such, the plaintiff’s claim was dismissed. Thanks to Lauren Howard for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

New Claims At The End Of Discovery Are Insufficient (NY)

In Smith v. 3173 Gas Corp. (2d Dept. 2023), the plaintiff sustained injury when she slipped on an entrance/exit ramp as she left a gas station. It was established during testimony that it had been raining at the time of the accident and the ramp was wet. After depositions were completed, but before the Note of Issue was filed, the defendant moved for summary judgment arguing that he could not be held liable because it was still raining at the time of the accident [Derosa v. Zaliy, 189 A.D.3d 1355 (2d Dept. 2007)]. Plaintiff’s counsel then submitted an amended bill of particulars alleging new claims that the ramp itself was defective. The trial court granted defendant’s motion, and plaintiff appealed, alleging that the amended claims were enough to present to a jury. The Second Department affirmed the trial court’s decision, holding that summary judgment in favor of the defendant was proper because the ramp was not defective since it was wet, and it was still raining when the plaintiff fell [Medina v. Sears Roebuck & Co., 41 A.D.3d 798(2d Dept. 2007)]. The Second Department further held that although plaintiff’s amended bill of particulars was proper since it was served prior to the filing of the Note of Issue, it nonetheless failed to provide triable issues of fact to sustain a claim against the defendant. Plaintiff submitted an expert’s report which failed to show how the condition of the ramp itself was the proximate cause of plaintiff’s fall, and plaintiff’s affidavit not only contradicted his prior deposition testimony, but also failed to establish that the ramp itself was the proximate cause of plaintiff’s fall. This case highlights a litigation strategy that is seen from time to time in negligence torts. A plaintiff will proceed through discovery and depositions, and if there is strong evidence to establish a viable defense at trial (or enough evidence for a strong argument on dismissal via summary judgment), then plaintiff will allege new claims or theories on the accident. Of course, plaintiff has the right to amend his bill of particulars before filing the Note of Issue, but often times, it is used as a tactic to create triable issues of fact to defeat summary judgment proceedings and sustain the viability of a claim. The defendant in this case properly highlighted the fact that plaintiff’s new allegations and theories of the accident contradicted her prior testimony and even then, still could not sustain her claim. Thanks to Raymond Gonzalez for his contribution to this article.  Should you have any questions, contact Tom Bracken.Read More

Supreme Court Rejects Narrowing Of Employer Immunity From Tort Liability, Under the Workers’ Compensation Act (PA)

In the recent case of Franczyk v. Home Depot Inc., the Supreme Court of Pennsylvania found that when relief in the form of workers’ compensation is available for a workplace injury, the exclusivity provision of Pennsylvania’s Workers’ Compensation Act (“WCA”), bars employees from also seeking tort relief against their employer. Plaintiff-Franczyk suffered a dog bite, from a customer’s dog, while working at Home Depot. Franczyk was instructed by her employer not to have any further interaction with the offending customer on the day of the incident. She was ultimately diagnosed with injuries requiring surgery and claimed and received workers’ compensation under the WCA. Franczyk filed suit against Home Depot, alleging that by preventing her from investigating and  receiving necessary contact information from the customer, the store “denied her the opportunity to file a third-party suit against the dog owner.” Home Depot moved for Summary Judgment on the grounds that they were immune from liability under the exclusivity provision of the WCA. This provision states:

• 481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes [sic] … entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108. (b) In the event injury or death to an employe is caused by a third party, then such employe … may bring [her] action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action. The trial court denied summary judgment. It reasoned that an employer cannot utilize the statutory protections of § 481, when its alleged negligence prevented an employee from learning identifying information about the theoretical third-party whom the statute envisions employees will sue instead of their employers. Significantly, the trial court made no reference to any specific duty owed by employers, that could give rise to the type of negligence claim asserted against Home Depot in the present matter. The Superior Court affirmed the Trial court’s decision. The Supreme Court rejected the lower courts’ finding. It reasoned that § 481 is the product of public policy compromise wherein “the employer assumes liability without fault for a work-related injury but is relieved of the possibility of a larger damages verdict in a common[-]law action. The employee benefits from the expeditious payment of compensation but forgoes recovery of some elements of damages.” In light of this public-policy context, the court determined that even intentional acts by an employer, are insufficient to pierce the employer-liability protections of § 481. While the Court acknowledged the existence of a select few carve-outs to the Act, it ultimately determined that “the WCA has anticipated and foreclosed virtually any sort of negligence claim against an employer ‘on account of” a physical injury that occurs in the workplace.” The Court reversed and remanded the lower court’s decision and granted Summary Judgment to Home Depot.  Franczyk is a win for defendant-employers and their insurers as it limits the risk of duplicative liability for employers by correctly accounting for the public policy compromise set forth in § 481 of the WCA. Thanks to Stephen Kerstein for his contribution to this article.  Should you have any questions, contact Tom Bracken.Read More

Liability Of An Out of Possession Landlord (NY)

Where a landlord leases a premises and does not retain control over it during the duration of the leased term, a landlord cannot face liability. The prevailing case law holds that an out of possession landlord is not liable for injuries on a leased premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or conduct, to perform the relevant maintenance and repairs. This situation was addressed in the recent decision of Washington v. Jay St. Dev. Corp., 2023 NY Slip Op 01818 (2d Dep’t April 5, 2023), plaintiff alleged she was injured when she tripped over a curled-up edge of a runner mat in the lobby of a building, causing her to slip and fall on the wet marble floor. At the time of the accident, the lower floors of the premises, including the lobby, were leased by the City of New York and the upper floors were leased by commercial tenants. Employees of the City of New York placed and maintained the runner mat on the lobby floor. The landlord, Jay Street Development Corp., moved for summary judgment on the grounds that it was not a proper party to be sued because it was an out of possession landlord with no duty to maintain the lobby. The court noted that because plaintiff alleged common law negligence claims, rather than a violation of a statute, the defendant established its entitlement to summary judgment because it did not have a duty to maintain the premises by contract or conduct. The court further noted that the landlord could transfer its duty to maintain the premises in a reasonably safe condition to the City pursuant to the lease, even though the lobby was in public use, and there was no evidence that the landlord knew or should have known of the dangerous condition at the time the lease was entered into. Failing to raise an issue of fact, the Second Department upheld the lower court’s decision to dismiss plaintiff’s amended complaint as asserted against the landlord. This case serves as a reminder of the factors considered in determining whether liability can be imposed upon an out-of-possession landlord. Thank you to Gabriella Scarmato for her contribution to this article. Should you have any questions, please contact Andrew Gibbs.Read More

Step On A Crack, Creator Needs To Pay To Fix Your Mother’s Back (NY)

If there is a triable issue of fact as to whether the actions of the defendants caused or created the hazardous condition that allegedly caused the plaintiff’s accident, summary judgment will be denied. Recently, the Appellate Division, Second Department overturned the lower court’s granting of summary judgment to the defendant in Abramson v. Janowski’s Hamburgers, Inc., 2023 NY Slip Op 02293 (2d Dep’t May 3, 2023). Plaintiff was allegedly injured when she tripped and fell over a crack in a sidewalk in Rockville Centre. Defendants operated a wholesale and retail hamburger products business, with a loading dock located across the street from the sidewalk crack that allegedly caused the plaintiff’s accident. Defendants were awarded summary judgment in the trial court. Liability for a dangerous condition on real property, is based on ownership, occupancy, control, or special use of the property. The existence of one or more of these elements gives right to a duty of care. However, liability can also be imposed upon a party that created the dangerous or defective condition. In opposition to defendant’s summary judgment motion in Abramson, plaintiff submitted the deposition testimony of an individual who had lived next door to the defendants’ premises for nearly 56 years. The neighbor testified that the street on which he lived was a dead-end street that was mostly residential, and that the drivers of 18-wheel tractor-trailers that made deliveries to the defendants’ business, while maneuvering into the driveway of the premises, frequently drove onto the sidewalk across the street, thereby creating the condition that caused the plaintiff to trip and fall. Furthermore, the neighbor had, on numerous occasions, observed Vogelsberg and other employees of Janowski’s Hamburgers, Inc., and Bianca Burgers, LLC, directing truck drivers onto the sidewalk while assisting them in backing up to the loading dock. As such, the Court ruled that this evidence was sufficient to raise a triable issue of fact whether the actions of the defendants caused or created the hazardous sidewalk condition that allegedly caused the plaintiff’s accident. With that, the decision was reversed on appeal. This case serves as a reminder of the salience of causation. Thanks to Rebecca Pasternak for her contribution to this article. Should you have any questions, please contact Andrew Gibbs.Read More

Watch Out For Comparative Negligence (NY)

When a plaintiff files a motion for summary judgment on liability seeking also to dismiss the defendant’s affirmative defense of comparative negligence, counsel must be mindful of shifting standards. The parameters for what are validly considered when ruling on a motion for summary judgement on the issue of liability do not necessarily require that a plaintiff be completely free from all fault. Contrastingly, when deciding on a defendant’s comparative negligence affirmative defense to a summary judgement motion, those applicable parameters are widened to consider the plaintiff’s own conduct. For example, in Acevedo v. CKF Produce Corp., 2023 NY Slip Op 02633 (2d Dep’t May 17, 2023), an incident occurred when the plaintiff was injured after being hit by a forklift in the road near the Brooklyn Terminal Market. The plaintiff filed a lawsuit against the forklift operator and the operator’s employer/forklift owner. In attempting to raise a triable issue of fact to oppose the plaintiff’s motion for summary judgement, the defendant produced an affidavit from the forklift driver describing the accident. The court was unpersuaded because the affidavit failed to sufficiently explain why he was unable to stop the moving forklift prior to contact with the plaintiff. The lower court granted summary judgement on A) liability against the defendant, and B) dismissed the defendant’s affirmative defense of comparative negligence. The Second Department vacated the dismissal of the defendant’s affirmative defense. The Appellate Division based its decision, in part, on the distinction that while a plaintiff is not required to establish freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff’s comparative negligence may be decided in the context of a summary judgment motion where the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence. The Second Department explained that the plaintiff failed to establish that he exercised due care prior to the accident to a high enough degree to absolve him of any blame. The plaintiff’s supporting materials were not explicit enough to eliminate the possibility that he failed to keep a proper look out when he stepped into the road while carrying boxes of food on his shoulder. Normally this distinction wouldn’t be as impactful in mere liability terms, but the added affirmative defense of comparative negligence allows the plaintiff’s actions to come into relevance. Thanks to Alex Rabhan for his contribution to this article. Should you have any questions, please contact Andrew Gibbs.Read More

Defendants Provide Non-Negligent Explanation

In Bello v. Masters Auto Collision of Long Is., Inc., the Second Department recently addressed whether the defendants were not at fault in the subject car accident. The plaintiff was a passenger in a vehicle driven by co-defendant Alcantar which allegedly struck the rear of a vehicle owned by defendant Masters Auto and operated by defendant Mendez. Masters Auto and Mendez moved for summary judgment dismissing the complaint. The Court set forth that a driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle. Thus, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the operator of the rear vehicle. In turn, to rebut the inference of negligence, that operator is required to provide a nonnegligent explanation for the collision. Master Auto and Mendez established that they were struck in the rear when stopped in traffic, and as such were not at fault. This decision serves as a reminder the burden a party has when involved in a rear-end collision. Thanks to Corey Morgenstern for his contribution to this article. Should you have any questions, please contact Andrew Gibbs.Read More

A Mafia Con Man Weeps For His Victim

Jimmy Sabatino, a Gambino soldier, serving 20 years in a supermax prison, expressed sympathy for stealing jewelry worth $2 million from a Manhattan jeweler.  But this Mafia con man has no sympathy for the insurers who defeated the victim’s insurance claim premised on the policy exclusion for goods delivered or entrusted to a thief.  Sabatino sought to unwind our victory in the trial court and the unanimous affirmance by the Appellate Division, First Department, by claiming that his theft involved innocent intermediaries, and thus the policy exclusion for goods delivered or entrusted to a thief should not apply.   Sabatino’s claim, expressed in a diatribe posted on the court’s docket, formed the basis for a Motion to Vacate Judge Ostrager’s award of Summary Judgment to insurers.  Although Sabatino’s claim was uncorroborated and far-fetched, Judge Ostrager decided to accept, however specious, Sabatino’s claim as true, and asked the question central to a Motion to Vacate for “newly discovered evidence;” namely, would the evidence if accepted make a difference to the outcome?  And the answer here was decidedly “No.” As Judge Ostrager put it: “Passing on the reliability of anything contained in an unverified note from Sabatino, and accepting everything in the note as true, the note does not change the fact that the allegedly innocent couriers were part of a scheme by a criminal enterprise.” Challenges to coverage wins premised on “newly discovered evidence” are rare. But if you face such a challenge, Judge Ostrager’s road map is a useful tool.  See, Decision & Order Motion to Vacate.  If you want to learn more about Sabatino’s diabolical scheme and the law regarding the policy exclusion for Dishonest Entrustment, here are the links to the underlying decisions. Decision & Order Trial Court / Decision & Order-Appellate Division, First Department If you have any questions, contact Dennis M. Wade.Read More

Dell Computers And Commercial Tenant Escape Liability In Subrogation Claim Stemming From Power Cord Failure (NY)

In Erie Ins. Co. v .Children’s Palace Childcare Ctr., Inc., a New York trail court awarded summary judgment to Dell Computers, Inc. (“Dell”) and Children’s Palace Childcare Center, Inc. (“Children’s Palace”), in a subrogation action brought against them by Erie Insurance Company (“Erie”). Erie insured several businesses that sustained property damage from a fire, paid their property damage claims, and sought to recover against Dell and Children’s Palace. The fire started inside Children’s Palace, which leased space in a commercial strip plaza. The owner of Children’s Palace purchased two Dell computers from an Office Max store. Each computer came in a box which contained a power cord that was plugged into power strips used by the business. Erie claimed that the fire was caused by a defective power cord manufactured by Dell and that Children’s Palace failed to take appropriate precautions to prevent the fire. Though it was undisputed that the plug of the power cords supplied with the Dell computers was composed of sub-standard materials, Dell submitted evidence it only supplied power cords with proper conductors and plug blades. So, even though the power cords came in the box with Dell computers, the “affirmative evidence” proffered by Dell allegedly showed that it did not manufacture the cords at issue. Erie had sought to place the burden on Dell to prove a negative, that is, how non-Dell power cords got into a box with Dell computers. The Court rejected that argument, holding that a defendant is not required in moving for summary judgment to prove a negative on an issue it does not bear the burden of proving. The Court looked to common experience of people returning items to a store without the original box, purchasing new equipment in a re-sealed box, or swapping out power cords with newer, and perhaps unknowingly, sub-standard power cords. Erie was only able to show that a power cord was in a box with a Dell computer system sold by a third-party seller. It could not show the “reasonable probability” that Dell manufactured the product that allegedly caused the fire. Any inference that Dell manufactured the power cords based on the cords being in the same box as the Dell computers was speculative and not sufficient to defeat summary judgment. The Court further held that even if Dell was determined to have manufactured the defective power cord, it could not be held liable because it was “undetermined” as to what caused the fire. Children’s Palace had no notice of any dangerous or defective conditions concerning the cords or property that caused or contributed to the fire. There was no proof the Children’s Palace knew that the power cords were defective or a fire hazard. The Court found no support for Erie’s argument that a commercial tenant should know of latent electrical issues with a tenancy or have a duty to examine each outlet for “faulty wiring.” There are two important takeaways from this decision. The first is having proper factual and expert causation evidence in subrogation claims stemming from fire losses. Speculative evidence as to the cause of a fire will not likely survive summary judgment. The second takeaway is that a commercial tenant has no duty in respect of latent and unknown electrical issues. Please contact John Diffley with any questions.Read More