News Your Neighbor's Point of View Can Help Overcome Motion for Summary Judgment (NY) May 12, 2023 < Back Share to: When a defendant obtains a summary judgment against a plaintiff, the fight does not end there. While the discretion ultimately remains with the court, a summary judgment may be reversed on appeal if the opposing party submits evidence that raise a triable issue of material fact. For example, in Abramson v Janowski's Hamburgers Inc. 2023 NY Slip Op 02293 (2d Dep’t May 3, 2023), plaintiff allegedly was injured when she tripped and fell over a crack in a sidewalk located across the street from the defendants’ wholesale and retail hamburger products business. The hamburger defendants used their loading dock and driveway across the street from the sidewalk crack that allegedly caused the accident. Plaintiff subsequently commenced a lawsuit against the defendants alleging the defendants were negligent in that the defective sidewalk condition was caused and created by trucks that drove onto the sidewalk while making deliveries to the defendants’ premises. Thereafter, the defendants moved to dismiss the complaint as asserted against them. The lower court granted the defendants’ motion and the plaintiff appealed. Thereafter, the second department reversed the lower court’s decision to grant the defendant’s summary judgment motions. Although as a general proposition, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control or special use of the property, liability can also be imposed upon a party that creates the dangerous or defective condition. Here, the plaintiff submitted deposition testimony of an individual that resided next door to the defendants’ premises for nearly 56 years. The neighbor testified he lived on that street for many years and witnessed drivers of 18-wheel tractor-trailers make deliveries to the defendants and while doing so, maneuvered into the driveway and frequently drove onto the sidewalk across the street. As such, the neighbor witnessed employees of the burger companies direct the truck drivers onto the sidewalk to use their loading dock. Accordingly, the neighbor’s testimony was sufficient to raise a triable issue of fact as to whether the actions of the defendants caused or created the hazardous sidewalk condition that allegedly caused the plaintiff’s accident. Therefore, the defendants’ motion for summary judgment was reversed and denied. Thank you to Lauren Howard for her contribution to this post. Should you have any questions, please contact Matthew Care.   Previous Next Contact

News Summary Judgment Granted in Favor of Plaintiff in Trip and Fall on Sidewalk Upon Determine that There was a Substantial Defect of the Sidewalk July 12, 2024 < Back Share to: Polibio Abreu tripped and fell on a sidewalk adjacent to 129 Duane Condominium. His left foot contacted an uneven sidewalk flag, over which he tripped and fell, causing injuries that required acervical fusion. At the time that he fell, Abreu testified that he was looking straight ahead, his hands were empty, and his cell phone was in his pocket. He also alleged that the sidewalk was dimly lit at that time. The property manager of 129 Duane testified that 129 Duane was aware of the condition of the sidewalk prior to the accident, and that he had notified the Board of 129 Duane of the uneven flag. He further testified that the adjoining property had redone their sidewalk and he thought that the condition needed to be repaired by the adjoining property, 200 Church Street Associates LLC. The court noted that as a general matter, 129 Duane has a “non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.” The court found that it was undisputed that the sidewalk flag was in front of 129 Duane’s property. Even still, 200 Church’s potential responsibility for the sidewalk maintenance did not create an issue of fact regarding 129 Duane’s failure to maintain the sidewalk. Abreu produced a photograph with a ruler showing the height differential to be more than one-half inch deep. The court deemed this differential to be a “substantial defect” as defined by the Administrative Code. A “substantial defect,” is not so easily defined. Therefore, to have this example is helpful for our analysis when assessing the liability in other sidewalk cases. Although 129 Duane argued that the defect was “open and obvious,” the court found that the Defendant was unable to demonstrate that the defect was open and obvious in a manner that should preclude liability. The photographs provided were taken during the day and Abreu testified that the lighting was dim when he tripped. The court found that even if they did find the defect to be open and obvious, it would only relieve the 129 Duane of its duty to warn of the defect and not preclude liability for allowing the defect in the first place. This case stands for the proposition that when making an argument that a defect is open and obvious, we must also establish the property owner was not liable for the defect in the first place. Because even though the defect may be open and obvious, if a property owner knew of the defect and failed to remedy it, they still may be liable. Abreu v. Brutus Assoc .pdf Download PDF • 728KB Previous Next Taylor Mitarotonda Taylor Mitarotonda Senior Associate +1 516 240 5938 tmitarotonda@wcmlaw.com Contact

News Statue of Limitations not Tolled by Defendant's Promise to Take Care of Violations (NY) January 5, 2018 < Back Share to: In Huss v. Rucci Oil Company, the Appellate Division, Second Department, discussed the respective burdens of proof based on a defense involving the statute of limitations, which is then countered by a plaintiff’s claim that equitable estoppel failed to toll the statute. In this case, the plaintiff brought suit for causes of action sounding in breach of contract and negligence based on defendant’s failure to obtain the necessary permits in its installation of a fuel storage tank at plaintiff’s premises. Defendant moved to dismiss as the June 11, 2015, action was time barred given the accrual of both the breach of contract and the negligence claims on December 19, 2008 when defendant installed the fuel tank. The lower court denied defendant’s motion as plaintiff had raised the issue of whether the doctrine of equitable estoppel was applicable which would constitute a toll of the limitations period for each cause of action and the defendant has not met its burden in establishing the actual accrual of the action. Typically, the defendant bears the initial burden of establishing that the time in which to commence the action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable. Here, the Appellate Division found that defendant satisfied its initial burden. The burden then shifted to plaintiff to establish that a subsequent specific action by the defendant induced the plaintiff to delay timely bringing suit due to plaintiff’s reliance on the defendant’s misrepresentation. On these facts, when the first of three violations for failure to obtain necessary permits was issued to the defendant in October 2009, defendant’s service manager informed plaintiff that defendant would take care of that violation. Plaintiff claimed they relied on this representation and that he was unaware that defendant had not in fact cured the violation until a subsequent violation had been issued in July 2013, thus allegedly justifying plaintiff’s delay up until June 2015 in commencing the action. However, the Appellate Division noted that equitable estoppel will not toll a statute of limitations where a plaintiff possesses timely knowledge sufficient to place a plaintiff under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable statute of limitations. Where the doctrine of equitable estoppel applies, the burden is on the plaintiff to establish that due diligence was exercised in commencing an action within a reasonable time after the facts giving rise to the estoppel ceased to be operational. The court found that plaintiff did not demonstrate the necessary due diligence because plaintiff could have commenced an action within the more than three-and-one-half years remaining on the six-year breach of contract cause of action and the four months remaining on the three-year negligence statute of limitations when the second violation was issued in August 2011. This violation served to provide plaintiff with timely knowledge of the defendant’s failure to cure the initial violation. Thus, the Appellate Division granted defendant’s motion to dismiss. Thanks to Sara Matscfhke for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News New York Camp’s Exclusion Of HIV-Positive Child Is Discrimination January 21, 2010 < Back Share to: A federal judge in New York has ruled that a Rockland County basketball camp unlawfully discriminated against a 10 year-old HIV-positive boy when the camp denied admission to the child. Doe v. Deer Mountain Day Camp, 07 CIV 5495. While the court recognized that the camp was obligated to protect other campers from a life-threatening infection, the obligation did not excuse actions based on unsubstantiated fears. The court held that the camp provided no evidence that the infected child posed a direct threat to the health and safety of others. The court noted that the basis of the camps fears, that HIV in stool can survive in swimming pools and that HIV can be transmitted by blood on a toilet seat, did not conform to the prevailing medical consensus, and was not justified through credible scientific evidence. If you would like more information regarding this post, please email David Tavella at dtavella@wcmlaw.com Previous Next Contact

News A Good Walk Gone Bad: Golfer's Claim Against Golf Course Dismissed (NY) October 8, 2020 < Back Share to: In Conrad v. Holiday Valley Inc., plaintiff slipped and fell on a stairway landing while playing golf at defendants' golf course. He ascended a stairway used to access the tee box on the twelfth hole and then took a measurement from the tee box using his range finder. When he went to return to his golf cart, he stepped onto the landing at the top of the stairway, slipped on a wooden board, and fell, suffering injuries to both of his knees. Defendants moved for summary judgment dismissing the complaint on the ground that plaintiff assumed the risks associated with playing golf. Supreme Court denied the motion. Defendants appealed and the Appellate Division reversed the lower court decision. The Appellate Court held that defendants demonstrated that, at the time of the incident, plaintiff knew that the course was still wet from rain that had just fallen, and that he was familiar with the stairway in question, having just used it moments before his accident. For those reasons, we conclude that defendants met their initial burden by establishing that plaintiff was aware of the risk posed by the stairway and assumed it. The doctrine of assumption of the risk acts as a complete bar to recovery where a plaintiff is injured in the course of a sporting or recreational activity through a risk inherent in that activity The Court reasoned that golfers who use the course can get injured due to the playing conditions. Since the course was wet, the plaintiff should have been aware of the potential for injury of the mechanism from which the injury. Defendants established on their motion that plaintiff was an experienced golfer who had played defendants' golf course several times in the past Since plaintiffs failed to raise a triable issue of fact whether plaintiff was subjected to “unassumed, concealed or unreasonably increased risks” the defendants’ motion was granted. Thanks to Paul Vitale for his contribution to this post. Any questions, please contact Georgia Coats. Previous Next Contact

News Open And Obvious Still A Viable Defense January 3, 2008 < Back Share to: < ![CDATA[Open And Obvious Still A Viable Defense]]> Previous Next Contact

News 1st Dep't: An Erased Hard Drive Can Give Rise to Adverse Inference Against Defendant December 10, 2010 < Back Share to: In Ahroner v Israel Discount Bank of N.Y., the trial court granted the plaintiff an adverse inference instruction with respect to e-mails on the defendant's erased hard drive. The Appellate Division affirmed the decision, stating that spoliation sanctions were properly granted. The evidence demonstrated that defendants controlled hard drive, were aware of their obligation to preserve it, and were subsequently directed by the court to do so. Defendants informed the court that they would comply with their obligations and would produce the hard drive for inspection by a forensic expert. However, the hard drive was erased before plaintiff was able to inspect it. Although the record was unclear as to when the hard drive was erased or whether it was preserved, the court concluded that since the drive was destroyed either intentionally or as the result of gross negligence, the court properly drew an inference as to the relevance of the e-mails stored on the drive. Special thanks to Bill Kirrane for his contributions to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_09013.htm Previous Next Contact

News Fewer LSAT Takers . . . Fewer Lawyers March 23, 2012 < Back Share to: For the first time in a long time, LSATs and law school applications seem to be down. A NY times article noted on March 20, 2012 that the number of LSAT takers has dropped from over 170,000 two years ago to less than 130,000 during the most recent test. This trend seems to be a function of both the recession and, more importantly, the immense debt carried by young lawyers upon graduation from law school. Recent college grads, upon hearing tales of $200,000 debt from friends and relatives, are beginning to look elsewhere for financial security. A slowly improving economy may diminish this trend in coming years, but lower tuition (and lower educational debt) will likely continue to be an issue. http://www.nytimes.com/2012/03/20/business/for-lsat-sharp-drop-in-popularity-for-second-year.html Thanks to Brian Gibbons for his contribution to this post.   　 Previous Next Contact

News UN Report on Climate Change = Bad News for Property Insurers? November 18, 2011 < Back Share to: This will come as no surprise to those of us in the Northeast for whom Halloween was cancelled because of snow -- http://www.nytimes.com/2011/10/30/us/northeast-snow-storm.html?pagewanted=all -- but extreme weather is on the rise -- http://www.washingtonpost.com/national/health-science/report-climate-change-means-more-frequent-droughts-floods-to-come/2011/11/15/gIQAfwqHXN_story.html?hpid=z1. According to the United Nations Intergovernmental Panel on Climate Change -- http://ipcc-wg2.gov/SREX/ -- in a report that was just issued today, climate change will make drought, flooding and other extreme weather conditions more common in the years to come. It is obviously a development that needs to be closely monitored by property insurers as current beachfront property may become the equivalent of Atlantis and inland property may become the next French Riviera! For more information about this post or WCM’s property practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Bowling Alley Strikes Out In Its Attempt To Be Spared Liability (NY) March 11, 2022 < Back Share to: Plaintiff's emanated from a slip and fall at the defendant's bowling alley in Clifton Park New York. Ms. Muscato alleges she slipped and fell causing her injuries because the floor near the ball return was excessively slippery. In defending the action and moving for summary judgment, the bowling alley offered the testimony of its manager who stated they neither created the slippery condition nor had notice of it. The manager offered testimony concerning general cleaning and inspection, however, the bowling alley did not answer what was specifically done on the date in question. The court reiterated precedent which states the testimony as to general cleaning and inspection practices are not sufficient to show lack of constructive notice of that dangerous condition. The alley also argued that plaintiff was unable to identify the cause of her fall, however witnesses testified that the floor in that ball return area was unusually or excessively slippery and that despite not knowing exactly what caused the plaintiff to fall, she offered enough circumstantial evidence from which negligence can reasonably be inferred. The court noted that plaintiffs claim can be deduced from defendants' practice of moving its oiling machine from lane to lane near the ball return area. As such, the bowling alley was not spared liability. Please contact Tom Bracken to discuss. Previous Next Contact

News If You Win the Lotto in NJ, Don’t Quit Your Job and Hide the Money from Your Poolmates. March 16, 2012 < Back Share to: Office lotto pools are probably only second in US popularity to the NCAA basketball bracket pools. The case of Silva v. Lopes arises out of just such an office pool. Basically what happened is that 6 construction workers would pool their money to buy Mega Millions tickets when the jackpot exceeded $50,000,000; Lopes would then buy the tickets. So it was in November of 2009 –except this time one of the tickets Lopes bought was the winning $77,000,000 ticket. Lopes returned to work the day after winning the lotto. The next day he quit his job and claimed a foot injury. He then claimed the jackpot which his co-workers found out about through the grapevine. The instant lawsuit was commenced. After an 8 day trial in Union County, the jury found for the defendants and awarded them their share of the lotto winnings. What makes the award somewhat unusual is that there were no written documents that confirmed the arrangement between the plaintiffs and Lopes. But it seems clear that the jurors smelled a rat when they heard all the evidence. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News New York High Court Settles “Issued or Delivered” Debate December 1, 2017 < Back Share to: The New York Court of Appeals settled a longstanding debate over the scope of Insurance Law section 3420 by ruling it “encompasses situations where both insureds and risks are located in this state.” The debate raged under the old 3420, which applied to policies “issued for delivery” in New York, and was reinvigorated following the revision of 3420 as applicable to policies “issued or delivered” in New York. In the action underlying the coverage dispute of Carlson v. Amer. Int’l Group, Inc., Claudia Carlson was killed in a car accident by a truck with a DHL Worldwide Express, Inc. logo. DHL hired MVP Delivery and Logistics, Inc. to supply delivery services in Western New York, where the accident occurred. The Estate obtained a $7.3 million verdict in their wrongful death suit. MVP’s insurer contributed $1.1 million toward the verdict, and the Carlson Estate obtained the right to pursue further amounts from DHL’s insurer, in this case National Union Fire Insurance Co. (“National Union”) and American Alternative Insurance Co. (“AAIC”). Although American International Group, Inc., and AIG Domestic Claims, Inc. (collectively “AIG”), did not issue any pertinent policy to DHL, both were named as defendants. AAIC issued a policy providing “hired auto” coverage to Airborne Inc. (headquartered in Washington State), DHL’s predecessor. DHL issued a similar policy providing “hired auto” coverage to DHL (headquartered in Florida), and a second policy providing umbrella coverage. The Carlson Estate sued AIG and DHL seeking satisfaction of the outstanding judgment pursuant to Section 3420, and alleging a host of causes of actions alleging unfair business practices, including bad faith. National Union and AAIC argued the first cause of action, seeking contribution to settlement, should be dismissed in part because the pertinent policies were not “issued or delivered” in New York as required Section 3420. Reversing the trial court, the Fourth Department held the policies were not issued or delivered in New York, holding instead they were issued in New Jersey (from AAIC’s offices), and delivered in Washington and then Florida. On appeal, the Court of Appeals reversed the Fourth Department on this issue, and held the policies were “issued or delivered” in New York. Based on a previously issued General Counsel Opinion underlying Section 3420, the Court noted, “[T]he proper interpretation of the term ‘issued or delivered in this state’ refers both to a policy issued for delivery in New York, and a policy issued for delivery outside of New York.” The Court recognized that the location of the risk and the location of the insured, rather than the location of the physical insurance policy, controlled. As a matter of public policy, the Court reasoned the outcome was consistent with the legislative intent behind Section 3420, which “created this statutory cause of action to remedy the inequity of the common law rule that an injured person had no cause of action against the insurer of a tortfeasor and to protect the tort victims of New York.” The Court further recognized DHL purchased insurance coverage for its package delivery services, a substantial portion of which occurred within New York State. The Court of Appeals’ decision amounts to a common sense recognition of business reality: not all businesses regularly operating within New York are domiciled or headquartered there. It would be presumptively unfair to afford the business the economic benefits of providing services within the state, while not holding the same business accountable under New York law. That said, the decision was decided on a 4-3 split, and featured a strongly worded dissent that perceived the majority ruling as unduly expansive. The dissent predicts this decision will open the proverbial can of worms. Ultimately, if an insurer seeks to limit risk to geographic locations, care should be taken in the underwriting process, and the policy should be issued with specific endorsements to that effect. Thanks to Chris Soverow for his contribution to this post.   http://www.nycourts.gov/reporter/3dseries/2017/2017_08163.htm Previous Next Contact