News WCM Victorious in Second Department Appeal Arising Out of a Personal Injury Burn Case February 1, 2013 < Back Share to: New York, NY Counsel Cheryl Fuchs and Associate Gabriel Darwick successfully convinced the Second Department to reverse a Brooklyn trial court decision that denied our client’s motion for summary judgment in a case involving burns allegedly sustained in a bathtub. In Mauskopf v. 1528 Owners Corp., the decedent was found in his bathtub with burns to the left side of his body. The then 95-year old died a month and a half later. There were no witnesses to the accident, but the decedent’s son claimed his father told him he was burned in the bathtub. We represented G. Bauer, Inc., a boiler service company that, upon request, performed repair and maintenance work on the burner of the building and otherwise performed annual Department of Building inspections of the boiler. We moved for summary judgment on the basis that plaintiff could not identify the cause of the decedent ’s injuries without resorting to hearsay or speculation. We also argued, that even if the decedent was burned in the bathtub, G. Bauer did not have a contract with the building to perform routine or systematic maintenance of the boiler, and never performed work on, or inspected the mixing valve that controlled the hot water temperature. The trial court judge denied our motion on the basis that there were “issues of fact”. The alleged "issues of fact" were not identified in the court's order. On appeal, the Second Department reversed the trial court and granted our motion on the basis that G. Bauer owed no duty to the plaintiff, as there was no evidence that G. Bauer’s work involved inspection or maintenance of the mixing valve. Previous Next Contact

News Second Department: Not All Playground Falls Amount to Foul Play (NY) August 31, 2018 < Back Share to: The Second Department issued a favorable decision for the defense bar in a recent decision on the case Boland v. North Bellmore Union Free School District. In that case, the lower court granted the defendant’s summary judgment motion as to the negligent training and supervision claims and denied the motion as to the negligent maintenance claims. The Second Department affirmed the lower court’s decision insofar as it granted the defendant’s motion as to the negligent training and supervision claims and reversed the decision insofar as it allowed the negligent maintenance claims to survive. Given how common the circumstances underlying this case are to schools, parks, and camps, the court’s signal that it would not entertain this case could help to dissuade plaintiffs from burdening such institutions and clogging the courts with commonplace accidents. In Boland, the infant-plaintiff alleged that she was injured when she fell from an “apparatus” in the defendant’s school playground during recess. The child’s mother, as her guardian, brought claims for both negligent training and supervision and negligent maintenance of the playground. The Court found that the defendant established its prima facie case as to the negligent training and supervision claim by submitting evidence which demonstrated that it provided adequate training, adequate supervision, and that the level of training and supervision was not a proximate cause of the incident. As to the negligent maintenance claim, the Second Department concluded that the defendant stated its prima facie case by submitting evidence to demonstrate that the playground was adequately maintained and that it did not create an unsafe or defective condition. Unfortunately, the decision does not specify of what this evidence consisted. However, the Court went on to explain that the plaintiff’s expert failed to raise a genuine issue of material fact when the expert argued that the ground cover beneath the apparatus was inherently dangerous or defective. The expert argued that the ground cover did not meet standards set by the American Society of Testing Material and Consumer Product Safety Commission. However, the Second Department opined that these standards were guidelines and not mandatory and therefore reversed the lower court to dismiss the negligent maintenance claims as well. The Second Department’s decision is beneficial to the defense bar, in that it discourages claims arising out of incidents, which undoubtedly occur daily: children falling off of playground equipment. While the opinion does not say so outright, based upon the court’s reasoning, it appears advisable for defendants in such cases to support their arguments with an affidavit from a qualified and experienced expert in the design, construction, and maintenance of playgrounds and playground equipment. Thanks to Kristina Duffy for her contribution to this post. Please email Vito A. Pinto for more information. Previous Next Contact

News Courts Should Not Express Opinions as to Workers Compensation Remedies (NY) February 3, 2023 < Back Share to: In New York, jurisdiction concerning Workers Compensation Law belongs to the Workers Compensation Board. In Lall v. Harnick, plaintiff was injured when she fell at a property owned by defendants. Defendants moved for summary judgment dismissing the complaint, arguing that plaintiff was an employee at the property and therefore the Workers Compensation Law provided the exclusive remedy. New York Appellate Court reversed the lower court’s decision denying defendant’s summary judgment as premature. The Appellate Court held that where the issue is applicability of the Workers Compensation Law, a court should not express an opinion as to availability of compensation and should refer the matter to the Workers Compensation Board. The Board’s disposition of a plaintiff’s claim is a jurisdictional predicate to filing a civil action. This reinforces the Workers Compensation Law and will put the burden on plaintiff’s injured in the workplace to first litigate such injuries before the Workers Compensation Board and not the Supreme Court. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Former Duke Lacrosse Case Prosecutor Files For Bankruptcy - Players To Contest January 17, 2008 < Back Share to: Mike Nifong has filed for bankruptcy reporting $243,898 in assets and potentially $180 million in liabilities. Most of the $180 million comes from potential civil suit damages from the three indicted and several unindicted lacrosse players. Lawyers for the players will argue that Nifong willfully and maliciously injured the players, which if proven, would not allow the claims and damages to be discharged in the bankruptcy proceedings. http://www.newsobserver.com/news/crime_safety/duke_lacrosse/story/886122.html Previous Next Contact

News NY Court of Appeals to Review Where Policy "Issued or Delivered" April 28, 2017 < Back Share to: The underling loss of Carlson v. AIG involved the sad story of Claudia Carlson, who died in a motor vehicle accident when she was struck by a commercial vehicle in upstate New York. Carlson’s estate obtained a judgment against MVP, the company that owned the delivery truck. MVP was carrying property for DHL, and although DHL was exonerated at trial, plaintiff’s sought to enforce the MVP judgment against DHL’s insurers under the theory that MVP was also an insured under the DHL policies. New York Insurance Law §3420 (d) allows a party to commence a direct action against an insurance company when there is an unsatisfied judgment against their insured, but the statute only applies to insurance policies “issued and delivered in New York.” Prior to a 2014 amendment, Insurance Law §3420 (d) required that the policy must be “issued for delivery” in the state. One of DHL’s insurers, American Alternative Insurance Co. (AAIC), successfully moved to dismiss on the basis that the judgment was unenforceable because it did not issue or deliver a policy in New York, and this was upheld on appeal. On March 28, 2017, the Court of Appeals heard oral argument in Carlson v American International Group, Inc. In an interesting twist, the Court subsequently directed the case to be reargued to invite amicus curiae participation. It appears that the Court wants to evaluate whether the AAIC policy, which presumably insured DHL’s deliveries in New York, was “issued or delivered” in New York for purposes of Insurance Law §3420. Insurance Law §3420 is a wide ranging statute that also requires timely disclaimers in personal injury actions, so any ruling that expands the scope will be notable for insurers. We will continue to follow this case on Of Interest. Thanks to John Collins for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Plaintiff’s Case Slips Away on Unsuccessful “Mode-of-operation” Theory (NJ) November 10, 2016 < Back Share to: The defense bar scored another small victory in the ever-evolving “mode-of-operation” argument which focuses on the manner in which a commercial establishment conducts its business. If argued successfully, a plaintiff may be relieved of the typical burden to prove notice if they can instead prove that the commercial defendant should have been aware of the reasonable possibility that a hazardous condition could be created solely based upon the defendant’s business practice. The plaintiff in Anderson v. Stop and Shop Supermarket Company, L.L.C. claimed to have slipped and fallen on a "semi-solid substance" on the grocery store aisle while shopping in the frozen food section. She could not identify the substance, where it came from, or how long it had been there. After the fall, the store manager was quickly notified. He found the floor to be dry and semi-solid substance free. He also testified that maintenance porters routinely walk the store monitoring for hazardous conditions. The defendant successfully moved for summary judgment arguing that the plaintiff could not prove that the store had actual or constructive notice of the presence of the substance which she claims caused her accident. On appeal, the plaintiff argued that the self-service nature of the store’s business practice warranted a finding of constructive notice. But the Appellate Division was not convinced. Prior decisions in this long line of cases have held a food store liable when a customer sustains injury due to a hazardous condition inside the store, such as a grape on the floor in the checkout area. However, the Court highlighted the plaintiff’s failure to demonstrate the necessary nexus between the hazardous condition and the defendant’s business operation. A grape, for example could reasonably be expected to fall onto the floor due to careless handling in the checkout area. On the other hand, the Anderson Court found it unreasonable to impute constructive notice for an unknown substance in an aisle containing packaged and sealed containers. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Did I Really Say That? November 21, 2012 < Back Share to: Under NY CPLR 3116, after a party receives a deposition transcript, the witness has an opportunity to make "changes in form or substance . . . at the end of the deposition with a statement of the reasons given by the witness for making them." Although typically utilized to correct transcription errors, some plaintiffs use this statute as an opportunity to “clean up” problematic testimony. As the First Department decision in Banegas v Unique Gas Corp shows, it is critical that attorneys review and, if necessary, challenge all such changes. In Banegas, plaintiff testified that she slipped on the driveway where cars entered and exited the station. However, when shown photographs of the location of her fall, plaintiff marked a spot in the street. Since the marked spot was not on their property, the defendant moved for summary judgment. After receiving the transcript, plaintiff clarified that she had marked the spot where she landed . Thus, she maintained that she slipped on the defendant's driveway. As this change was made before the defendant filed its motion, summary judgment was denied. When faced with a change to deposition testimony, an attorney should always carefully analyze the reason for, and effect of, the change. If the plaintiff failed to provide an adequate explanation - or if the change requires further questioning of the witness - a motion must be filed or you may be stuck with an improper “correction” of that party’s deposition testimony. Thanks to Bill Kirrane for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Curtains Closed on Lincoln Center and Metropolitan Opera’s Attempts to Escape Labor Law Liability (NY) July 15, 2013 < Back Share to: In Mayo v. Metropolitan Opera Association, Inc., a subcontractor’s employee was injured while repainting the steel carriage rail for the Metropolitan Opera House’s automated window-washing system. In order to access the steel carriage rail, the plaintiff testified that he had to climb a ladder located on the sixth floor of the Opera House and exit onto the roof through a hatch door in the ceiling. Apparently, the hatch door was easy to open but difficult to close because of a broken hinge and required two hands to close it. While attempting to close the hatch with two hands, the plaintiff fell from the ladder and was injured. Both the Met and Lincoln Center moved for summary judgment on the plaintiff’s Labor Law § 240(1) claim. Furthermore, Lincoln Center argued that the plaintiff’s Labor Law §200 and common-law negligence claims should be dismissed because it did not create or have any notice of a defect in the hatch door. The Appellate Division’s opinion turned on the testimony by Lincoln Center’s chief engineer, who had opened and closed the hatch more than 100 times and testified that in order to close the hatch, a worker had to break three-point contact with the ladder and somehow wedge his body up against the concrete side of the hatch to safely reach up with both hands to close the door. Ultimately, the court held that both the plaintiff’s testimony about the difficulty of reaching the roof, coupled with the chief engineer’s testimony demonstrated that the Met and Lincoln Center failed to provide adequate safety devices to protect the plaintiff from the risks associated with gaining access to the Opera House roof and steel carriage rail. Additionally, the chief engineer’s testimony created a question of fact as to whether Lincoln Center had notice of the defect in the hatch door. As an aside, while Lincoln Center’s counsel did not move for summary judgment on an out-of-possession landlord theory, they did attempt to raise the defense on appeal. While the Appellate Division declined to consider the defense, it stated that even if it had, the chief engineer’s testimony would have been enough to create a question of fact as to whether Lincoln Center knew of a significant structural or design defect that was contrary to a specific statutory safety provision. Special thanks to Michael Nunley for his contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News City of NY expects lawsuit from "Displaced Boaters" September 5, 2012 < Back Share to: Abandon Dinghy! A day out on a small boat, while a lovely way to spend a warm afternoon, has its pitfalls. Boats are expensive to maintain, and one must always be cognizant of suddenly bad weather. Apparently, Mr. and Mrs. Higgins can add "beware of rogue NYPD boats" to the list. On August 20, 2012, John Higgins and his wife Mary Ann were forced to jump from their small dinghy into Jamaica Bay when they observed an NYPD boat heading straight towards them. Immediately after jumping from their boat, the NYPD vessel crashed into their boat. It is unclear whether their eventual suit will involve any claims beyond property damage. If not, the City would be wise to settle this matter without much haggling, seeing that the Higgins family likely saved the City a sizable personal injury settlement by jumping from the dinghy, rather staying on board for the crash. Thanks to Brian Gibbons for this contribution. Previous Next Contact

News Second Department Increases Jury Award for Past Pain and Suffering. March 10, 2009 < Back Share to: In Baird v V.I.P. Mgt. Co., Inc., plaintiff was injured in a fall and underwent three spinal surgeries. At trial, a Westchester County jury found the defendants 70% at fault, while plaintiff was found 30% at fault. Plaintiff was awarded damages in the amount of $100,000 for past pain and suffering and $300,000 for future pain and suffering. The Appellate Division held that the amount awarded for past pain and suffering was insufficient and represented a material deviation from what would be reasonable compensation. The surgeries involved spinal fusions at the C5-6 and C6-7 levels. The fusions failed requiring the third surgery. The plaintiff testified that she was in constant pain, and was unable to drive, work and otherwise engage in normal activities. The Appellate Division ordered a new trial on the issue of past pain and suffering, or in the alternative, that the defendants agree within 30 days to increase the verdict amount from $100,000 to $400,000. The Appellate Division found that the award for future pain and suffering, however, did not deviate from what would constitute reasonable compensation. Thanks to Alison Weintraub for her contribution. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01599.htm Previous Next Contact

News Duty to Prevent Assault? ... Not In Adult Care Facility (NY) April 18, 2013 < Back Share to: In Malave v Lakeside Manor Homes for Adults, Inc., the Second Department affirmed summary judgment to the adult care facility defendant, Lakeside, finding it owed no duty of care to its residents for personal injuries caused by another resident. The court reasoned that the facility had no authority or ability to control the conduct of a third person. In Malave, the plaintiff was stabbed by another resident during an argument in Lakeside’s lobby. Plaintiff commenced suit against Lakeside and the resident who stabbed him. Plaintiff alleged that Lakeside was liable because, among other reasons, it had a duty to protect him from the assaults of other residents. Lakeside presented evidence that it was an adult care facility. An adult care facility is defined as a “family-type home for adults, a shelter for adults, a residence for adults or an adult home, which provides temporary or long-term residential care and services to adults who, though not requiring continual medical or nursing care […], are, by reason of physical or other limitations associated with age, physical or mental disabilities or other factors, unable or substantially unable to live independently.” Lakeside also presented evidence that, as an adult care facility, its residents were free to come and go as they pleased, and that in order to remove a resident from the facility, it would need to commence an eviction proceeding. Lakeside did not require the issuance of day passes, which would have been indicative of a certain level of authority and control over its residents, who did not relinquish general autonomy. Courts have imposed a duty of care where a party has sufficient authority and ability to control the conduct of third persons. However, it distinguished the adult care environment since such a facility does not fit into this category. In this respect, an adult care facility has a much more limited ability than, for example, mental institutions. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Lack of Notice Supports Grant of Summary Judgment February 22, 2011 < Back Share to: In Ameneiros v. Seaside Company, LLC, the Second Department found that defendant had established its prima facie entitlement to summary judgment and that plaintiff failed to raise any triable issues of fact, including that the dangerous condition was recurring and ongoing and that the defendant had actual knowledge of the condition. Plaintiff was injured after she slipped on a puddle of water in an elevator of an apartment building owned by defendants. The Second Department, affirming the trial court’s ruling, held that defendant had succcessfully proved that the puddle was created by a codefendant, that it did not have actual notice of the puddle, and that the puddle did not exist for a sufficient length of time for defendant to have constructive notice of the puddle. Thus defendant was entitled to summary judgment. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01226.htm Previous Next Contact