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News A.D. Defines Foreseeability Of Crime Necessary For Negligent Security Claims June 25, 2008 < Back Share to: In Maria T. v. New York Holding Company Associates et al, the plaintiff was sexually assaulted at gunpoint in her apartment. In her lawsuit, she claimed that the defendants failed to provide adequate security for the building where she lived. She asserted that the defendants failed to maintain a working lock on the sole entrance into the building. Defendants moved for summary judgment on the grounds that the assault was not foreseeable in that they were unaware of any criminal activity in the building other than the crime at issue and that the prior crimes relied upon by plaintiff were not similar to the assault and therefore did not demonstrate that the assault was foreseeable. In opposition, plaintiff relied upon police reports that reflected criminal activities that occurred in or near the building to establish that this crime was foreseeable. Plaintiff also retained an expert in the field of premises security who opined that the subject apartment building was in a police precinct with high rates of crime and the drug activity in the neighborhood attracted criminal elements to the neighborhood, thereby making the assault on plaintiff foreseeable. The Trial Court denied defendants' motion, citing a question of fact as to the issue of foreseeability. In reversing this decision, the Appellate Division, First Department held that building owners and managing agents have a common-law duty to take minimal security precautions to protect tenants from foreseeable criminal acts of third parties. In order to establish foreseeability, the criminal conduct at issue must be shown to be reasonably predictable based upon prior occurrences of the same or similar criminal activity at a location sufficiently proximate to the subject location. While plaintiff cited seven prior instances of criminal activity in and around the apartment building, ambient neighborhood crime alone is insufficient to establish foreseeability. In conjunction with the fact that none of them were similar to the sexual assault committed against the plaintiff, the crime perpetrated upon plaintiff was not foreseeable ie., reasonably predictable. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_05558.htm Previous Next Contact

News Property Owner Is At The Root Of The Problem, Not the City of New York October 22, 2021 < Back Share to: We present a case this week highlighting the liability of sidewalk maintenance between the City of New York and an abutting property owner. In Konstantinos Gallis v. 23-21 33 Rd., LLC, 2021 NY Slip Op 05549 (2d Dept. 2021), the plaintiff claimed personal injury after he tripped and fell on a raised part of sidewalk. The location of the fall was next to a tree owned by the City of New York. Plaintiff alleged the tree roots had raised the sidewalk allegedly causing the hazard. The premises owner 23-21 33 Road LLC defaulted on the Complaint, and plaintiff sought summary judgment on liability against the City of New York alleging the City allowed for the tree roots to grow and cause the hazard ultimately leading to plaintiff’s injury. The trial court denied the plaintiff’s motion and the Second Department affirmed that decision. The Second Department re-affirmed Administrative Code §7-210 and its precedent which shifts liability for defective sidewalk conditions from the City to the abutting property owner. Importantly, Administrative Code §7-210 covers any defects involving the negligent failure to repair or replace defective sidewalk flags, and failure to remove snow, dirt, or other materials from the sidewalk. The court determined the defective sidewalk conditions caused by growing tree roots is covered under Administrative Code §7-210 and noted an abutting property owner may cut or remove tree roots to repair sidewalks after obtaining permission from the City. Also important in the Second Department’s decision is that the exemption of Administrative Code §7-210 under subsection (b) allows for the City to be held liable if the property is “in whole or in part, owner occupied” and used for “exclusive residential purposes.” The reasoning behind this exemption is that the City should only be allowed to shift the burden of sidewalk defects to commercial properties and not “small residential properties” who would not have the resources for constant monitoring and repair of the sidewalk. This case highlights the specific variables wherein the City of New York can and cannot be held liable for any sidewalk defect or defect caused by inclement weather abutting a property owner’s building under almost any circumstances. The liability for a defect on the sidewalk is almost always shifted to the abutting property owner, and the caveat exception would apply to residential properties which are at least in part owner occupied. Thus, any commercial property owner should constantly monitor their sidewalks, and in the event of a defect caused by a tree, they should immediately contact the City of New York for permission to rectify the defect. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News New York Court Extends The Scope Of Protection Under Labor Law 240(1) November 4, 2021 < Back Share to: In Hensel v. Aviator FSC, Inc., the Second Department recently addressed the scope of “falling object” liability in deciding whether a plaintiff’s work entitled him to Labor Law §240(1) protection. Plaintiff in that case alleged that he was injured while loading heavy soccer boards into the back of a box truck. Plaintiff alleged that as he stood next to a forklift, the 100-pound board slid off the forklift and struck him in the head. Defendant moved for summary judgment, arguing that §240(1) did not apply to plaintiff’s accident under those circumstances. Plaintiff cross-moved for summary judgment and asserted that §240(1) liability applied. The Supreme Court agreed, granting Plaintiff’s cross-motion, and denying defendant’s motion. The Second Department affirmed, recognizing that "Labor Law §240(1) provides special protection to those engaged in the 'erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.’” It found that the Supreme Court “correctly concluded that the disassembly and removal of the boards from the soccer field was a partial dismantling of a structure and constituted “demolition” within the meaning of Labor Law §240(1).” (Citations omitted). The panel went on to state that “The plaintiff's role in hauling away the boards after they had been removed by the defendant was an act "ancillary" to the demolition and alteration of the field structure and protected under Labor Law §240(1).” The Hensel decision serves as a reminder that acts that are related or “ancillary” to the demolition of a structure will be afforded Labor Law §240(1) protection by New York courts. Thank you to Corey Morgenstern for his contribution to this post. Please e-mail Andrew Gibbs with any questions. Previous Next Contact

News Clear Assumption Of Risk Does Not Relieve Defendant's Duty Of Care June 11, 2009 < Back Share to: In Fourtounis v. MJB Service Station, Inc., the defendant moved for summary judgment based on the plaintiff's assumption of the risk and based on the theory that the plaintiff's actions were the sole proximate cause of the accident. The accident occurred when the plaintiff took his taxicab to the defendant's service station for repairs. The cab was placed on a mechanical lift located one foot off of the ground. As the car was being repaired, the plaintiff asked for a bottle of Windex to clean his windshield and stepped onto the lift. The mechanic then raised the lift five to six feet in order to drain fluid from the cab, with the plaintiff standing on the lift. The plaintiff, who at this point was talking on his cell phone, was unaware that the lift was raised. He concluded the phone call, stepped backwards and fell 5 to 6 feet to the floor, sustaining injuries. The court denied the defendant’s motion holding that although the plaintiff voluntarily placed himself in a hazardous situation, the mechanic was not relieved of his duty of care owed to the plaintiff because the mechanic knew the plaintiff was in the garage and near the lift. Moreover, an issue of fact exists at to whether the defendant was negligent and whether such negligence was a substantial factor in the accident. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29236.htm Previous Next Contact

News Boxing Instructor Should Have Been Ready to Tumble September 27, 2013 < Back Share to: Owners and managers of sporting facilities have a duty to maintain their premises in a reasonably safe condition. But that does not mean that those using the facilities can ignore the conditions they have seen before. In Baccari v. KCOR, Inc., an experienced boxing instructor stepped into the ring to train his girlfriend during his spare time. During one of their training sessions, the instructor injured himself after stepping into a gap in the padding that was located under the canvas. The defendant moved for summary judgment, arguing that the doctrine of primary assumption of risk barred recovery. The Queens County Supreme Court disagreed, and denied the motion. However, the Second Department reversed, holding that the doctrine of primary assumption risk “includes risks associated with any open and obvious conditions of the playing field, including risks arising from ‘less than optimal conditions.’” Key to the court’s ruling was the fact that the boxing instructor was familiar with the very ring in which he was injured, and even saw one of his students step into the gap on a prior occasion. Baccari is not the only recent New York decision to absolve a defendant who maintained sporting facilities in less than ideal conditions. What is becoming increasingly clear in New York is that when sporting participants are aware that a facility is not as up to par as it should be, they should be prepared to use the facility at their own risk. Of course, property owners and managers should not use Baccari as a license to neglect their facilities. The recent cases denying recovery for those injured in poorly maintained facilities have done so in situations where the plaintiffs have used the facilities before and were aware of those conditions. If the plaintiff had been someone other than an instructor familiar with that particular boxing ring, it is unlikely that the court would have knocked the case out. Thanks for Mike Guavin for this post. If you have any questions, please email Paul at pclark@wcmlaw.com   Previous Next Contact

News Devil Is in the Details in NY Settlement Checks. March 16, 2012 < Back Share to: In the case of Fleischman v. New York Life, New York’s First Department was confronted with the question of what constitutes accord and satisfaction. The specific issue before the court was whether the defendant’s tender of a refund check, and the subsequent cashing of that check by the plaintiff, indicated that the plaintiff had accepted a full resolution of the disputed claim. In affirming the trial court, the First Department ruled that it did not as there was nothing on the check or in the transmittal letter enclosing the check that indicated that the check was tendered “only on the condition that it was in full payment of the disputed claim.” The moral of the story is that the devil is in the details. If you think the issuance of a check fully resolves a claim, then you need to make that clear. Otherwise, you can be left with dangling participles that will have to be cleaned up later. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News FDIC Could Become Federal Insurance Regulator October 29, 2008 < Back Share to: Reuters reports that The Federal Deposit Insurance Corp.'s powers could be expanded if Congress decides to shift insurance companies from state regulation to federal regulation. States currently regulate insurance companies. However, according to FDIC Chairman Sheila Bair, the FDIC could start providing guarantees for insurance companies, much like it already guarantees the deposits of most U.S. banks, if the insurance industry comes under federal regulation. Previous Next Contact

News NY's First Department: Site of insurance contract trumps site of injury. October 15, 2007 < Back Share to: In a silica exposure case involving parallel lawsuits in CA, PA and WV, NY kept control over the coverage disputes. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=6986625 Previous Next Contact

News Plead it or Lose it: Failure to Plead Defamatory Statements Warranted Dismissal. January 28, 2013 < Back Share to: In Abakporo v. Daily News, et al., plaintiff sued the Daily News for two newspaper articles he alleged contained defamatory statements against him. He also sued for misappropriation of his image pursuant to Civil Rights Law §50. Though plaintiff annexed the articles to his complaint, his failure to specifically identify the defamatory statements was fatal to his claim. With respect to the Civil Rights Law, plaintiff failed to adequately allege facts to establish that the photograph accompanying the articles was used for advertising or trade purposes. Due to plaintiff’s pleading deficiencies, the Second Department affirmed the dismissal of his case. In evaluating a pre-answer motion to dismiss, courts will liberally apply the facts as alleged in the complaint. Where a party fails to allege defamatory statements in a defamation complaint, there can be no liberal application of the facts. As such, in evaluating defamation claims, the first inquiry must always be whether the complaint was appropriately pled, and whether a pre-answer motion to dismiss is feasible. For more information about this case, please contact Cheryl at cfuchs@wcmlaw.com .     Previous Next Contact

News Let the settling party beware… NJ enforces agreements October 17, 2011 < Back Share to: An insurer’s settlement of litigation is binding on its insured even where there is a substantial self – insured retention. During mediation of a claim by two boilermakers injured in a refinery explosion, the plaintiffs were offered $1.6 million. The parties agreed that a settlement would resolve all claims and cross claims pending in the litigation. However, the plaintiffs did not outright agree to the amount of the offer and continued to negotiate with the insurance adjuster - finally accepting $1.65 million. At that point, the settlement of the cross claims began to unravel. The defendants in the case included the owner of the refinery and the company it contracted to provide maintenance services along with two of its subcontractors. The maintenance contractor assumed the defense of the refinery owner and then sought defense and indemnification from its two subcontractors. Despite contractual provisions requiring the subcontractors to name the owner and contractor as additional insureds on their CGL policies, both insurers denied that such coverage had been secured. While one of the insurers participated in the settlement, the other chose not to contribute. The mediated settlement agreement included dismissal of all cross-claims including claims against both subcontractors for breach of contract. However, the contractor retained the right to pursue the non-participating subcontractor’s insurer in a separate declaratory judgment action. On second thought, the contractor, who had a substantial self insured retention, became concerned that, in the event the declaratory judgment failed, it would have no recourse for breach of contract against its subcontractor once the cross-claim was extinguished. A fight to enforce the term of the settlement agreement requiring dismissal of the cross-claim ensued. Even though the subcontractor had not contributed towards the settlement, the Appellate Division enforced the terms of the agreement requiring dismissal of the breach of contract cross-claim. In fact, the court considered this a non-factor in its decision. Instead, the court focused on the right of the contractor’s insurer to settle the case. Absent express language in the insurance policy requiring the insured’s consent to settle, an insurer has the right to control the terms of the settlement so long as it proceeds in good faith. Thus, notwithstanding the contractor’s self insured retention, its right to pursue the cross-claim against its subcontractor was extinguished by its insurance adjuster’s settlement agreement. See [i]Davis v. Valero Refining Co[/i], at http://www.judiciary.state.nj.us/opinions/a1337-10.pdf If you have any questions or comments about this post, please contact Denise at dricci@wcmlaw.com . Previous Next Contact

News PA Court Clarifies When Use Of Plaintiff's Behavior Can Be Used In Products Liability Cases September 28, 2010 < Back Share to: In a recent products liability case, the PA Superior Court clarified when a defendant in a products liability case can introduce evidence of the plaintiff’s behavior. In the case of Reott v. Asia Trend et. al., the court explained that there are only three limited circumstances when a defendant is permitted to introduce evidence of a plaintiff’s behavior in a strict liability products liability case. These are voluntary assumption of risk, misuse of the product and highly reckless behavior. This case involves a plaintiff, Duane Reott, who was injured while attempting to use a tree stand manufactured by the defendants. The plaintiff failed to use the device as prescribed by the instruction manual. However, the device also did not work properly. The issue at trial focused mainly on whether the wrongful use of the tree stand by the plaintiff counted as highly reckless behavior. The court was confronted with the issue of whether the defendants had met their burdens of proof. The court confirmed that highly reckless conduct is an affirmative defense that must be proven by the defendant by a preponderance of the evidence. In order to prove reckless conduct, the defendant must show that the plaintiff (1) knew of facts which created a significant risk of physical harm or that plaintiff “deliberately proceed to act, or failed to act, in conscious disregard of that risk,” and (2) that the plaintiff’s conduct was the sole or superseding cause of the injury. In this appeal the court ruled that the defense had not proven that Reott’s injury was the sole or superseding cause of his injury, thus he was entitled to a directed verdict on the issue. Thanks to Remy Lapidus for her contribution to this post. http://www.aopc.org/OpPosting/Superior/out/a25020_10.pdf Previous Next Contact

News NY Civil Trial Practice Update: Admissibility of Uncertified Police Reports November 25, 2020 < Back Share to: The Appellate Division of the Supreme Court of New York, Second Department’s recent ruling in Yassin v. Blackman, 188 A.D.3d 62 (2d Dep’t 2020) abrogates prior case law, which had previously held a party’s admission in an uncertified police report was admissible. Following Yassin, an uncertified police accident report no longer constitutes admissible evidence, absent a proper foundation for its admissibility. The Yassin Court, however, specifically noted that its holding involved a situation where a party affirmatively proffered an uncertified police accident report in support of a motion for summary judgment. By way of background, Yassin involved a personal injury action, wherein plaintiff alleged his taxi was negligently struck by a truck (owned and operated by separate defendants). The Supreme Court, Kings County granted plaintiff’s summary judgment motion on liability, supported by plaintiff’s affidavit and a copy of an uncertified police report. In brief, plaintiff’s affidavit averred he did not jut in front of the truck, in any fashion, but was stopped at a traffic light for a few seconds when he was rear-ended. The uncertified police accident report contained the trucker’s alleged admission that he side-swiped plaintiff’s taxi in an attempted pass. The trucker’s affidavit was submitted in opposition, essentially claiming plaintiff’s taxi was double-parked, but then cut off the trucker. On appeal, defendants contended the trucker’s affidavit raised a triable issue of fact as to whether plaintiff’s taxi cut off the truck. Plaintiff responded that the trucker’s affidavit should be disregarded as a feigned attempt to avoid the consequences of his admission contained in the police accident report. In reply, defendants argued, inter alia, the police accident report was inadmissible because it was not certified. The Appellate Division, Second Department reversed the trial court’s summary judgment order concluding triable questions of fact remained as to the trucker’s negligence. The Court discussed that statements recorded in police accident reports involve two levels of hearsay, each of which must satisfy a hearsay exception to render the statement in the report admissible. First, the report itself must be admissible. Properly certified police reports are admissible where the report is based upon the officer’s personal observations while carrying out police duties. CPLR 4518 (c) provides that the foundation for the admissibility of police reports (and other state records) may be laid through a proper certification. CPLR 4518 (c) is governed by the same standards as the business record exception. Thus, the certification must set forth the record was made in the regular course and it was the regular course of such business to make it, at the time of the act, transaction, occurrence, or event – or within a reasonable time, thereafter. Second, assuming there is a properly certified police accident report, the statement(s) contained within the report must satisfy a separate hearsay exception. Thus, the Court concluded that since the police report was not certified to begin with, and since a foundation for its admissibility had not been laid by some other method, the report and its contents constituted inadmissible hearsay. While it is true a party’s admission is an exception to the hearsay rule, the Court declared that a party’s admission contained within a police accident report may not be bootstrapped into evidence in this fashion. To avoid the evidentiary issues discussed in Yassin, New York trial practitioners seeking to proffer police accident reports and other business records should ensure these documents are certified. Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact