News The Project Itself is Not the "Safety Device" for Labor Law Purposes (NY) July 27, 2018 < Back Share to: The New York Labor Law imposes a non-delegable duty and absolute liability on owners and general contractors for injuries proximately caused by the failure to provide appropriate safety devices to workers who are subject to elevation-related risks. To escape liability under this statute, defendants have been known to make some novel arguments. For example, in Ren v. Gioia St. Marks the plaintiff was injured while working on a kitchen renovation project. During the project, he crouched down on a top of a ventilator, which he had attached to a ceiling beam, in an attempt to move it. Unfortunately, the ventilator tipped over and the plaintiff sustained injuries. In an attempt to establish that the plaintiff was provided with a safety device, the defendant argued that the ventilator itself was the safety device. But the First Department rejected this argument, and granted the plaintiff’s motion for summary judgment. In doing so, the court reasoned that the ventilator was not a safety device designed to protect the plaintiff from elevation-related risks, but rather, was the object of the construction project itself. This ruling is instructive for construction professionals because it shows that safety planning should take place before a project begins, not concocted out of thin air after the fact. Thanks to Michael Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Exposure To Lead Paint In Successive Tenancies Deemed One Occurrence (NY) February 28, 2013 < Back Share to: The Appellate Division, 4th Department recently held that the building’s insurer was only required to pay up to its limit on a single policy in a case where two successive tenants brought suit based on injuries allegedly suffered due to lead paint exposure in their apartment. In November of 1991, Allstate issued to Tony Wilson an insurance policy with a per-occurrence policy limit of $500,000 that covered Wilson’s apartment building. Wilson renewed the policy the next two years. The policy contained a noncumulative clause that stated “[r]egardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability...will not exceed the limit shown on the declarations page. All bodily injury...resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.” In 1993, two children were allegedly injured as a result of lead paint exposure while living in one of Wilson’s apartments. After they moved out, Wilson attempted to remedy the condition. However, in 1994, two children of the subsequent tenant suffered the same alleged exposure. Both tenants filed suit. During the pendency of the lawsuit, the first tenants settled their case for $350,000. Allstate then settled the second tenants’ case for $150,000, with the caveat that the second tenants would recover $500,000 if a court declared that Allstate was required to pay the full policy limit to the second tenants. The second tenants then brought a declaratory judgment action entitled Nesmith v. Allstate seeking the appropriate declaration. Allstate eventually moved for summary judgment, but the lower court denied its application. On appeal, the Appellate Division noted that the issue was whether the policy required Allstate to pay a second full policy limit under these circumstances or whether the plaintiffs’ losses were encompassed by the $500,000 per occurrence policy limit. The Appellate Division viewed the noncumulative clause as an unambiguous provision that Allstate had correctly interpreted. Furthermore, the Court cited to several prior court opinions on Allstate’s noncumulative clause where those courts had foreclosed on the plaintiff’s ability to collect on consecutive policies. Finally, the court likened this situation to that of asbestos exposure noting that the record established that the exposure to lead paint had to have originated from the same hazard. Special thanks to Michael Nunley for his contribution to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News Communication with Your Client is Key (NY) March 15, 2019 < Back Share to: In Amerally v. Liberty King Produce, Inc. the Appellate Division reversed the lower court’s order, granting defendant’s motion to enforce a settlement agreement and denying plaintiff’s motion to vacate the settlement agreement. The plaintiff tripped and fell over a hose outside of a store owned by the defendant. The plaintiff then commenced this action and while the action was pending, the attorneys for both parties participated in a mediation and signed an agreement resolving the matter for the sum of $150,000. However, when the defendant sent the plaintiff the settlement agreement, the plaintiff refused to execute, and the defendant moved to enforce it. The plaintiff then obtained a new attorney and cross-moved to vacate the settlement agreement on the ground that she never provided her former attorney with the authority to settle the action for the sum of $150,000 and that she was unaware that a settlement had been reached until several weeks after the mediation. The Supreme Court denied the defendant’s motion and granted the plaintiff’s cross motion. The defendant appealed. The court affirmed, holding that stipulations of settlements are favored by the court and further stating that when a settlement agreement is in writing and signed by a client or attorney, it should be considered binding on both parties. In addition, the court held that a stipulation may bind a party even where it exceeds the attorney’s actual authority, if the attorney had apparent authority to enter into the stipulation. Here, it was demonstrated that the plaintiff knew that her former attorney was participating in the mediation. Moreover, even if the attorney lacked the actual authority to enter into the settlement agreement, a finding could still be made of apparent authority. In addition, the party seeking to set aside the stipulation must prove that it was unfair or one sided. Thus, the case reveals that it is important to keep open communication to avoid unnecessary headaches and motion practice. Thanks to Nicole Lyalin for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Not Liable for Negligence, But Still Possibly Liable for Negligence? June 7, 2024 < Back Share to: Imagine filing for summary judgment and finding out you proved you are not liable for negligence, but failed to prove you are not liable for… Negligence. In the case Raul Garcia Delaluz v. Christine A. Walsh, et al. , this surprisingly wound up being the case for the defendant, Built Home Improvements, LLC (BHI). BHI was renovating the second-floor bathroom of the Co-Defendant, homeowner, Christine Walsh. Walsh sought to amend the scope of the work to include installation of granite in certain areas of the bathroom, including around her new bathtub. Because BHI did not perform such work, Walsh retained Monumental Marble. On the day of the accident, BHI was not on-site because Monumental had to install the granite before BHI could install the bathtub. Plaintiff, an employee of Monumental, was performing his work without the bathtub in place and the subfloor exposed. BHI had covered the subfloor with plywood where the bathtub would eventually be installed. There was a separate opening in the drain area, which was covered with its own wooden slab, which was located some distance below the plywood the covered most of the bathtub area. Plaintiff injured his leg when he stepped onto the wooden covering of the drain area and fell through the opening it covered. When plaintiff sued BHI and Walsh, BHI filed for summary judgment to dismiss plaintiff’s claims for common law negligence and Labor Law § 200 and 241(6). The motion was granted in its entirety. While the Appellate Division upheld the dismissal of the Labor Law claims, they reversed the common law negligence claim. This is particularly surprising because Labor Law § 200 is a codification of common law negligence. The Court held that Labor Law § 200 only applies to owners and contractors who are able to supervise the work. Here, BHI and Monumental were separate prime contractors not in privity with each other. Each entity was responsible for its own scope of work. BHI had no on-site presence and lacked the authority to direct, supervise, or control the plaintiff’s work. However, the Court held that BHI could still be liable under common law negligence under the theory that standing in the drain area was a danger that BHI failed to warn plaintiff of, and it was a question of fact if the drain area was such a readily observable risk that plaintiff would have been able to discover this danger on his own with reasonable use of the senses, thereby precluding summary judgment on the common law claim. This is an interesting result because it is based on a very nuanced difference. Technically, Labor Law § 200 and common law negligence are basically the same thing, but again, the former only applies when a party has supervisory power over another. Common law negligence does not require this. So, when trying to demonstrate you are not liable for negligence, make sure you also adequately demonstrate that you are not liable for negligence, either. Delaluz v. Walsh .pdf Download PDF • 831KB Previous Next Patrick J. Argento Patrick J. Argento Counsel +1 516 873 0011 pargento@wcmlaw.com Contact

News Lack Of Inspection Records Found Fatal To New York Notice Defense (NY) February 25, 2022 < Back Share to: The ability of a New York premises liability defendant to pursue a notice defense may depend on the timing and evidence of property inspections. In Argueta v. 3251 Third Ave. LLC, the Supreme Court, Bronx County recently addressed this issue in a case where plaintiff was injured after being hit by a falling ceiling tile. The defendant moved for summary judgment, arguing that it did not have notice of a problem with the ceiling. In addressing the notice defense, the court stated: “To meet its initial burden on the issue of lack of constructive notice, the defendant must "offer some evidence as to when the area in question was last inspected relative to the [accident]" (citing Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598 [2nd Dept 2008]). The court ultimately found that the defendant could not meet its burden as it did not have any maintenance records for two years before the accident and failed to proffer evidence from someone with personal knowledge as to when the ceiling was last inspected. As such, the court held that defendant failed to establish that it did not have constructive notice of the allegedly dangerous condition and the motion for summary judgment was denied. The Argueta decision highlights the need for New York property owners to conduct regular property inspections and maintain inspection and maintenance records. The failure to do so can result in the loss of a notice defense in a premises liability action. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Translation Dispute and Hearsay Testimony Precludes a Finding of a Question of Fact in Labor Law Case Resulting in Summary Judgment for Plaintiff (NY) January 3, 2019 < Back Share to: In Nava-Juarez v Mosholu Fieldston Realty, LLC, the Appellate Division reversed a Supreme Court decision and granted partial summary judgment to the plaintiff in a Labor Law case, and addressed the issue of hearsay testimony in opposition and translation disputes. The plaintiff claimed he was injured when the ladder he was working on shifted suddenly. In support of his summary judgment motion, the plaintiff provided an affidavit of a coworker who witnessed the accident and averred that plaintiff was painting the exterior facade of defendant's tavern when his ladder shifted, causing plaintiff to fall from his position three-quarters of the way up the ladder. In opposition, the defendants argued that a workers compensation form contained statements from the plaintiff with a different version of how he was injured. The plaintiff’s workers compensation form stated the accident happened “while walking I fell down stairs.” The Supreme Court Bronx County denied the plaintiff’s motion for partial summary judgment under Labor Law § 240(1). On appeal, the Appellate Division reversed this ruling. In its opinion, the Appellate Division held that the defendants failed to raise a triable issue of fact because hearsay, standing alone, is insufficient to defeat summary judgment. Further, the Court noted that the workers compensation form was prepared by plaintiff's worker's compensation attorney with the aid of a translator. Plaintiff testified that he told the translator "Mientras estaba trabajando me cai de una escalera," and asserts that the statement should have been translated as "While working I fell off a ladder." The decision notes that the Spanish word "escalera" may be translated as either "stairs" or "ladder" and in this case, there were no "stairs" to speak of as the premises is a one-story building and did not have an exterior staircase. The Appellate Division ruled that the plaintiff was incapable of discovering the error in the translation of the description of his accident because he could not read English and correct the statement. The summary judgment denial was reversed because the defendants were obligated to show that plaintiff was the source of the information recorded in the workers compensation form indicating that he fell from "stairs," and that the translation was provided by a competent, objective interpreter whose translation was accurate, a fact generally established by calling the translator to the stand at trial. Special thanks to George Parpas for his contribution to this post. Previous Next Contact

News NY's First Department Allows Insurer to Rescind April 9, 2009 < Back Share to: The First Department recently reiterated its position in respect of policy recision in Kiss Construction NY Inc. v. Rutgers Cas. Ins. Co. In applying for insurance coverage, Kiss represented that it was solely a painting company. However, it was sued by a construction worker and during the claim investigation, Rutgers learned Kiss had been serving as a general contractor and disclaimed coverage for the underlying action based on this material misrepresentation. Kiss filed a declaratory judgment action against Rutgers seeking a defense and indemnification, and in an affirmative defense, Rutgers moved for recision of the policy. Rutgers motion for summary judgment was denied, but the Appellate Division reversed the decision and held the policy was rescinded. Of interest is the fact that Rutgers did not formerly give notice of the recision prior to this action, nor did it return the premium. In addition, prior decisions of the Court held that an insurer’s duty to defend existed pending a judicial determination of its right to rescind. Although that point was reiterated here, it appears that an insurer with knowledge of a misrepresentation is not forced to assume a defense, provided it is ultimately successful in obtaining a judgment that recision was proper. Thanks to Stephanie Chen for her contribution. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02540.htm Previous Next Contact

News Visual Artists Rights Act in Action November 28, 2012 < Back Share to: Enacted in 1990, the Visual Artists Rights Act (“VARA”) bestows upon the living artist “the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation…” (17 USCA § 106(a) (2) ). Cady Noland, the creator of a print on aluminum entitled Cowboys Milking (“the work”) did just that when Noland discovered that Sotheby’s was about to offer the work at auction. Noland disclaimed authorship of the work on account of apparent damage and demanded that Sotheby’s withdraw it from auction. Sotheby’s implored Noland to change her position but to no avail. With Noland’s refusal, Sotheby’s immediately contacted the consignor Marc Jancou Fine Art, LTD, to report that it was withdrawing the print from auction, citing Noland’s disavowal of the work. Bitterly disappointed, Jancou sued Sotheby’s contending that a) Sotheby’s breached its contract to offer the work at auction; and b) Sotheby’s breached its fiduciary duty to Jancou (presumably on the theory that Sotheby’s permitted Noland to inspect the work without Jancou’s knowledge). In Marc Jancou Fine Art, LTD v. Sotheby’s, Inc., New York County Judge Ellen M. Coin, on November 13, 2012, dismissed Jancou’s suit, affirming the vitality of VARA. First, Judge Coin cited to the consignment agreement which gave Sotheby’s the right to withdraw any work from auction when there “is doubt as to its authenticity or attribution,” finding that Noland’s assertion of her right under VARA created more than “doubt” as to attribution - - and thus Sotheby’s was well within its right to withdraw the work. Second, Judge Coin was equally dismissive Jancou’s fiduciary theory, holding: “There is no indication that Sotheby’s withdrawal of the print item was made in bad faith. On the contrary, Sotheby’s has established that there was ample support for its determination that there was doubt as to the print’s attribution, and thus Jancou’s claim for breach of fiduciary duty must be dismissed.” (id.at 246-248) If you would like more information about this post or other VARA issues, please contact Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Eastern District of Pennsylvania Acknowledges Kvaerner is Still Good Law (PA) October 1, 2020 < Back Share to: The Eastern District of Pennsylvania in a declaratory judgment action, In re Shelter Structures, Inc., recently reaffirmed that Pennsylvania law typically does not provide coverage under a CGL policy for faulty workmanship. The underlying facts alleged that Shelter violated various building codes in the design and construction of an aircraft hangar. The aircraft hangar collapsed, destroying an aircraft and allegedly causing in excess of $10,000,000 of damages. After the collapse, the owner of the structure filed a lawsuit in the Philadelphia Court of Common Pleas alleging breach of contract, design defects, and construction defects. The insurer subsequently filed this instant DJ action, arguing that the CGL policy did not provide coverage for construction defects as a construction defect does not qualify as an “occurrence”. Citing Kvaerner, the District Court held that, “[u]nder Pennsylvania law, claims for faulty workmanship are not covered by occurrence-based provisions like this one because the term 'accident' implies a degree of fortuity that is not present in a claim for faulty workmanship.” Interestingly, Shelter argued that the Superior Court of Pennsylvania recently created an exception to the Kvaerner rule wherein an “occurrence” could plausibly be alleged with respect to damage to third-party property. We blogged about that decision here. The District Court disagreed, and held that "The Superior Court of Pennsylvania merely held that faulty workmanship does not preclude the finding of an occurrence when third-party property is damaged. An underlying complaint must still allege that the damage was caused by 'an unexpected and undesirable event' that 'falls within the definition of the term ‘occurrence’ under the [policy]' for there to be a duty to defend." For now, Kvaerner continues to remains “good” law, but this is just another example in which courts are being asked to limit its applicability. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News It’s Just Part of the Game: Plaintiff Assumes Risk with Collision at Third (NY) April 23, 2021 < Back Share to: In Infant v. Loisaida Inc, plaintiff, a thirteen-year-old, was injured when, as he was fielding at third base in a baseball game, a baserunner slid into the base and collided with his left shin. Infant plaintiff brought suit alleging negligence of the league for his injuries. Defendants argued that the plaintiff assumed the risk, as he had played baseball for seven years. The lower court dismissed the case against the defendants and plaintiff appealed. The Appellate Division, First Department affirmed the lower Court’s decision under the doctrine of assumption of risk, as knew the inherent risks of the game. He was injured in a common play in baseball. The Court rejected plaintiffs' argument that the baserunner's metal cleats created an enhanced or concealed risk that was not assumed. The little league rules that defendant was required to follow permitted the wearing of such cleats, and both the 13–year–old infant plaintiff and his father testified that they observed the baserunner wearing metal cleats. Plaintiffs have not shown that defendant failed to provide safety equipment that would have prevented the inherent risks. Since recovery is precluded by the fact that he assumed the risks inherent in playing baseball, plaintiffs may not recover under a theory of negligent supervision Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Doctor’s Delay In Providing Opposing Affidavit Doesn’t Warrant Threshold Summary Judgment (NY) August 29, 2013 < Back Share to: In Wilson v. Rotondi, the plaintiff was injured in a motor vehicle accident. The defendant moved for summary judgment because the plaintiff did not sustain serious injury as required by the Insurance Law. Plaintiff’s attorney failed to oppose the motion. The motion was initially adjourned to allow plaintiff time to secure a report from the treating neurologist. However, on the adjourn date, plaintiff’s counsel had not obtained the affirmation from the physician to submit to the court. Therefore, the court granted defendant’s motion for summary judgment “on default.” The plaintiff moved to vacate this order and submitted an affidavit from her treating chiropractor. The trial court denied the plaintiff’s motion to vacate finding plaintiff failed to demonstrate a reasonable excuse for the failure to respond or provide a potentially meritorious defense to defendant’s motion. The Second Department reversed the decision. Although the trial court had the discretion to grant the motion on default, the Appellate Division found that plaintiff’s counsel did not exhibit a “pattern of willful neglect.” Rather, the delay was caused by the treating physician who failed to timely provide his report. Therefore, the plaintiff would not be blamed for his client’s doctor’s delay. The Appellate Division then found that the defendant did not establish a prima facie entitlement to summary judgment. This case is a good example of the Appellate Division’s preference to decide cases on the merits. Still, the case does allow attorneys to blame third-parties for a failure to timely oppose a motion. Here, the plaintiff’s counsel neglected the motion and the Appellate Division was unwilling to dismiss the case. Therefore, even if a party fails to timely oppose a motion, an attorney should still request the trial court decide a motion for summary judgment on the merits. Specials thanks to Anne Mulcahy for her contributions to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News No Horseplay On The Part Of Defendant-Third Circuit Affirms Grant Of Defendant’s Motion For Summary Judgment July 28, 2023 < Back Share to: In a recent opinion handed down by the United States Court of Appeals, Third Circuit, for Garcia v. Mountain Creek Riding Stable Inc., a defendant stable owner, who provided horses and guides for trail rides, who had been sued by a plaintiff who was thrown from horseback while taking part in a trail ride, had its motion for summary judgment affirmed after the plaintiff appealed the district court’s grant. The court came to its decision by applying Pennsylvania law. The evidence established that the plaintiff Garcia, who did not speak English, was asked to change into riding boots provided by the defendant Stable. Garcia v. Mountain Creek Riding Stable Inc., No. 22-1700, 2023 WL 4418230, at *1 (3d Cir. July 10, 2023). While changing into the boots, the defendant Stable provided riding instructions to the patrons. Id. Although neither plaintiff Garcia, nor her husband, spoke English, Garcia’s son was translating for her on that day. Id. Garcia’s son, however, did not provide translation of the riding instructions because the plaintiff was busy with her boots and distracted. Id. Plaintiff Garcia provided testimony that she had been in a hurry because she was worried that she would be left behind. Id. The plaintiff’s husband, who had ridden a horse before instead gave Garcia brief instruction, rather than Garcia receiving translated instruction from the employees of the defendant Stable. Further, during the period plaintiff Garcia changed into the boots, her husband signed the waiver on her behalf, which had been provided by the defendant Stable. Id. The waiver, as well as signage on the property “informed patrons that they “assume[d] full responsibility for...risks including, but not limited to, the negligence of” Mountain Creek.” Id. There had also been testimony that the senior trail guide that she was concerned about plaintiff Garcia’s “riding ability and safety, particularly because she did not speak English” however multiple witnesses stated that neither of the two trail guides rode behind plaintiff Garcia. Id. At some point during the ride, plaintiff Garcia’s horse went off trail, and although Garcia testified that at least once she tried to stop the horse by pulling on its reins, she was thrown from the horse after it reared up on its hind legs. Id. Subsequently, plaintiff Garcia brought an action alleging that the defendant Stable had been negligent by failing to prevent the harm. Id. The defendant Stable then filed a motion for summary judgment, arguing that Garcia had not provided “sufficient evidence showing that Mountain Creek failed to prevent the harm, as required under Pennsylvania law.” In reaching its decision to affirm the lower court’s judgment, the Third Circuit applied Pennsylvania law, which “follows the Restatement (Second) of Torts, §§ 509 and 518, which identify the proof required to hold the possessor of a domesticated animal, such as a horse, liable for damages. Id. *2. Because there was no evidence showing that the horse had dangerous propensities, the court applied §518, rather than §509, which would apply in a circumstance when a domesticated animal is known to have dangerous propensities. Id. Under §518, to establish liability when a plaintiff does not assert that the possessor of the animal caused the animal to do harm, the plaintiff must instead show that the possessor was “negligent in failing to prevent the harm.” Id. plaintiff Garcia alleged five ways in which the defendant Stable had been negligent: that the senior guide, despite the testimony of having been concerned for Garcia’s riding ability, allowed Garcia to ride the horse, that the guides on the trail did not notice that Garcia was incorrectly holding the saddle instead of the reins, that the guides did not tell Garcia to pull the reins instead of holding onto the saddle improperly, that Garcia did not receive instructions in Spanish, and that the guides were in front of Garcia on the trail and thus could not monitor her. Id. The Third Circuit based its decision on the following conclusions: plaintiff Garcia acknowledged that the defendant Stable had provided instructions before the ride, and because Garcia’s son who had been her translator that day did not translate the instructions and instead Garcia’s husband gave her instruction, and because Garcia “demonstrated that she understood at least some of the instructions for controlling the horse as demonstrated by the fact that she knew to pull the reins back to stop the horse on at least one occasion.” Id. Further plaintiff Garcia “presented no evidence that Mountain Creek engaged in any conduct that caused the horse to begin running and presented no evidence that “the horse was unsafe for a novice rider or that the position of the guides would have impacted the horse’s behavior,” id., Thus the Third Circuit ruled that plaintiff Garcia had “not provided evidence upon which a reasonable juror could find” the defendant Stable to be negligent under Pennsylvania law. Id. This ruling serves as a reminder of the basic requirement to support a motion for summary judgment in Pennsylvania, or to refute one on appeal. Simply put, a motion for summary judgment cannot have material facts in dispute which would require it to go before a jury. Absent those disputed material facts, a court a litigant runs the risk of receiving the same judgment as plaintiff Garcia. Thanks to Ryan Hunsicker for his contribution to this article. Should you have any questions, contact Tom Bracken. Previous Next Contact