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HRRV in the Courtroom
2009 Archive

Lorraine Vasquez-Sullivan vs. FC Bruckner Plaza Associates, L.P., et. al.
Bronx County Supreme Court
Index #1481/97
December 2009

New York jury returns verdict for construction client in catastrophic injury case

York Hunter of New York, a HRRV client, has emerged victorious after a five and half week jury trial before Judge Cynthia Kern in Bronx County Supreme Court.

The plaintiff had alleged that the defendant was responsible for a catastrophic injury she suffered in a parking lot.

In a complex trial that spanned the testimony of over a dozen experts in fields ranging from architecture, lighting design and engineering to psychiatry, bariatric surgery and neurosurgery, the jury unanimously absolved York Hunter of all liability and awarded over $7.78 million dollars in damages against York’s co-defendants, FC Bruckner Plaza and First New York Management.

The case originated on December 3, 1996, when the plaintiff, then 38 years old, tripped and fell on a curb located on the roof top parking lot of a recently built shopping mall known as the Shops at Bruckner Plaza at 845 White Plains Road in the Bronx. The plaintiff, who was Christmas shopping at the time with her husband, claimed that her fall was caused by a curb not properly demarcated and by a defective lighting plan that was not completed by the construction manager, York Hunter. Moreover, the plaintiff claimed that the mall was unlawfully operating with an expired certificate of occupancy in violation of New York City Code. York Hunter had been hired by the mall owners, FC Bruckner Plaza, to build the mall. 

After the fall, the plaintiff was immediately diagnosed with a herniated disc of the cervical spine for which she underwent an anterior disectomy. After this surgery, doctors recommended that the plaintiff also undergo surgery of her lumbar spine. The plaintiff’s physicians, however, advised the plaintiff to lose weight before performing further surgery. After several months of unsuccessful diet plans, and, at the recommendation of her treating doctors, the plaintiff underwent  laparoscopic Roux-en-Y Gastric Bypass surgery to reduce her caloric intake. Unfortunately, after the surgery, the plaintiff developed complications, and, during surgery to correct the complications, her esophagus was ruptured. The plaintiff underwent four surgeries to attempt to repair her esophagus which all failed. As a result, the plaintiff had a Hickman’s catheter inserted in her chest and a permanent feeding tube installed in her stomach to take nutrition.

After the failed bariatric surgery, the plaintiff underwent eight additional surgeries on her cervical and lumbar spine which included fusion surgery at multiple vertebral levels in the back and neck. Doctors had also implanted a permanent morphine pump in plaintiff’s lower back to alleviate continuous spinal pain which allegedly rendered plaintiff incapacitated. By 2008, the plaintiff, who had suffered severe depression prior to the accident,  had undergone twelve surgeries and was hospitalized for severe psychiatric episodes requiring projected future medical expenses by a Life Care Planner in excess of $5 million. Thirteen years after the accident, the plaintiff is presently unable to eat normally and is required to take nutrition through the abdominal feeding tube for life.

At trial, the mall’s owners claimed that York Hunter had failed to properly construct the lighting plan and demarcate the curb at the scene of the accident in accordance with contract specifications and pursuant to the project schedule. During trial, HRRV, on behalf of York Hunter, proved that the contract specifications did not call for demarcation and that the original lighting plans drafted by the owner’s architect and consultants were defective. Utilizing complex architectural and electrical schematics, it was shown to the jury that the owner’s lighting plan was deficient and that York Hunter, in fact, had corrected these deficiencies within the project schedule. Moreover, vigorous cross-examination at trial of the owner’s witnesses revealed that the owner, not York Hunter, had control over the lighting systems and curb painting at the time of the accident.

Beyond liability, and prior to trial, HRRV conducted a meticulous investigation of the plaintiff, which included video surveillance showing plaintiff shopping, driving and engaging in physical activities all of which contradicted the extent of plaintiff’s claims of disability and her own “Day in the Life” video. 

At the conclusion of the evidence, the plaintiff’s counsel asked the jury to find the defendants liable and to award $19 million in past and future damages. The jury unanimously exonerated HRRV’s client York Hunter of  any responsibility for the accident, and found the co-defendants Bruckner and First NY Management 100 percent liable. The jury awarded $7.78 million in damages against these defendants.       

Iwuagwu v. GT Motors, LTD.
Supreme Court, New York County
Index Number 300128/06
November 12, 2009

Case dismissed based on plaintiff’s failure to provide discovery

Although generally reluctant to do so, New York courts will, on occasion, dismiss a plaintiff’s case following a repeated failure to provide discovery. In Iwuagwu v. GT Motors, LTD.(Index No: 300128/06, Bronx County Civil Court), the plaintiff alleged that the defendants, an automotive repair shop and its principals, converted his vehicle after a dispute over a repair bill. The plaintiff repeatedly failed to appear for a deposition, in violation of several court orders. The defendants moved to dismiss and, based on the prior orders and the plaintiff’s well-documented refusal to cooperate with defense counsel, the court granted the motion.

Christopher Gibbons represented the defendants.

Solomon Rapoport v. Cambridge Development, LLC d/b/a Atria Retirement Living and The Avondale Group, Inc., f/k/a Home Care Services of America, Inc.
Supreme Court, New York County
Index Number 105141/06
December 17, 2009

Summary judgment granted in negligent supervision case

HRRV a scored a major summary judgment victory in a catastrophic injury case before Judge Jane Solomon in New York County Supreme Court on behalf of The Avondale Group, Inc. This action arose out of a tragic accident which resulted in the paralysis of the plaintiff, an elderly resident of a retirement living facility. According to the plaintiff, he suffered severe neck and back injuries when he slipped and fell while running in the lobby hallway of Atria Retirement Living.

Although the plaintiff did not allege a defect in the floor, he charged that Avondale, along with the co-defendant, Atria, failed to supervise him and were aware that he had been running in the hallways on prior occasions.  He further charged that Atria and Avondale were negligent in allegedly evaluating him as suitable for living in a retirement living facility despite a diagnosis of Alzheimer’s Disease.

In support of its motion, Avondale, a home health care agency, argued that it had only been retained to provide medication management services on Mr. Rapoport’s behalf.  It submitted an affidavit from an expert in the field of geriatric medicine who reasoned that these services, known as “assisted self-medication”, are limited to dispensing medication and providing fluid to assist in swallowing.  This limited scope of services does not give rise to any ongoing duty to monitor the plaintiff’s activities or to safeguard him against falling injuries.

In granting Avondale’s motion for summary judgment, the court agreed with the defendant’s arguments and found that the plaintiff’s claims that the defendants failed to use reasonable care in evaluating him, and that that failure “was the proximate cause of [his] injuries”, was entirely conclusory.  The Court noted that “[t]his attempt to posit a duty and simultaneously to bridge the evidentiary gap between plaintiff’s illness and his accident does not suffice to withstand defendants’ motions.”

Schoneboom v. BB King Blues Club
Supreme Court of the State of New York
Appellate Division, First Department
2009 NY Slip Op 08160
November 12, 2009

New York appellate court applies assumption of risk in dismissing mosh pit case

A New York appellate court has, for the first time, applied the doctrine of primary assumption of the risk to a claim of injury sustained in or in the vicinity of a mosh pit.

In Schoneboom v. BB King Blues Club, the Appellate Division, First Department held that a club patron was barred by the doctrine of primary assumption of the risk from seeking damages for injuries suffered when an identified person in a group of slam dancers slammed into him.

The court held that “[a]fter observing the open and obvious slam dancing from a safe vantage point, and fully appreciating the risk of colliding with a slam dancer, plaintiff nonetheless elected to place himself in close proximity to that activity, thereby assuming the risk that resulted in his injuries.”

The First Department decision affirmed the order of Justice Marcy Friedman, sitting in Supreme Court, New York County, granting summary judgment. Justice Friedman had noted that the 36-year-old plaintiff testified that he was standing in the vicinity of "a lot of people bouncing around, bouncing off each other," but that he did not participate in the fun. Notwithstanding this rather incredulous claim, Justice Friedman held that the plaintiff, an experienced concertgoer, assumed the risk of being struck by a fellow concertgoer when, although conscious that an aggressive type of moshing was in progress, he deliberately placed himself in proximity to it. Justice Friedman had also rejected the plaintiff's contention that he did not consent to the risk because he did not actually participate in moshing, stating that "[i]t is well settled that 'a spectator generally will be held to have assumed the risks inherent in the game, including the specific risk of being struck.'"

Lastly, Justice Friedman had rejected the plaintiff's contention that he did not assume the risk of an assault or that a triable issue of fact existed as to whether he was assaulted, noting that plaintiff and his friends, all of whom submitted affidavits in opposition to the motion, did not claim that they made any complaint to security about "assaultive behavior." In any event, Justice Friedman held that even assuming arguendo that BB King had a duty to impose reasonable security measures to minimize danger, there was no evidence that it breached any such duty.

Steven H. Rosenfeld represented BB King Blues Club.

Michael C. Ciesiulka and Kristine L. Ciesiulka v. Joseph Rebovich, Reinhart Transportation, LLC and John Doe
United States District Court, Western District of New York
08CV204
November 6, 2009

Claim against tractor trailer owner and operator dismissed in the absence of “serious injury”

The plaintiffs Michael C. Ciesiulka and Kristine L. Ciesiulka claimed that they sustained serious personal injuries when their vehicle was struck by a tractor trailer operated by defendant Joseph Rebovich and owned by Reinhart Transportation. Plaintiffs alleged that the tractor trailer struck the left side of plaintiffs’ vehicle while they were driving on Genesee Street in Cheektowaga, New York.

The defendants moved for summary judgment on the grounds that plaintiffs did not sustain a “serious injury” as defined by New York Insurance Law §5102(d) or economic loss greater than the basic economic loss required by Insurance Law §5104. The plaintiffs had invoked three of the four categories used to define "serious injury" pursuant to §5102: (1) permanent loss of use of a body organ, member, function or system; (2) a permanent consequential limitation of a body organ or member or significant limitation of use of a body function or system; and (3) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

In support of their motion, defendants cited to the police report, plaintiffs’ deposition testimony and medical records and plaintiffs’ independent medical examinations, to prove that plaintiffs failed to meet the threshold level to satisfy any of the above categories. Defendants successfully rebuffed plaintiff Michael Ciesiulka’s efforts to link his purported herniated discs in his back with the subject accident and noted he did not miss any time from work as a result of the accident. In fact, he admitted that he continued to perform his daily activities. Defendants argued that any degenerative changes that existed were a result of prior injuries that progressed over time. Kristine Ciesiulka’s injuries were soft-tissue in nature and she admitted that she missed only one day from school and one week from work. She also continued her normal activities, including household chores, after the accident.

In granting defendants’ motion, the court agreed that plaintiffs failed to establish a prima facie case that plaintiffs sustained a “serious injury” pursuant to New York Insurance Law based on any of the three categories that they invoked. The court noted that the police report confirmed that neither plaintiff was transported to the hospital following the accident. Michael Ciesiulka did not miss any time from work as a printing press operator, an occupation that required frequent bending, kneeling, reaching, grasping and lifting, or taken anti-inflammatory medication. His examinations showed that he made an excellent recovery and sustained only soft tissue strain which would resolve itself over time. He continued with his normal and customary daily activities. Kristine Ciesiulka likewise did not prove any permanent consequential limitation resulting from the accident. Her medical records demonstrated only myofascial or soft tissue sprain of limited duration. She, too, continued to perform her daily activities. The court considered whether plaintiffs showed more than “mild, minor or slight limitation of use.” Miki v. Shufelt, 285 A.D.2d 949 (3d Dept. 2001).

The court noted that mere allegations of pain or limited range of motion were insufficient to satisfy the burden imposed on plaintiffs. Gonzalez v. Green, 24 A.D.3d 939 (3d Dept. 2005). In order for plaintiffs to prove that they were prevented from performing the material acts of daily living for ninety days during the one hundred eighty days following the accident, they need to prove more than a brief period of time missed from work. Thompson v. Abbasi, 15 A.D.3d 95 (1st Dept. 2005). Consequently, the court dismissed plaintiffs’ action in its entirety.

Carla Varriale represented the defendants.

Bowman v. East-West Touring Company and Cygnus Productions, LLC
2009 NY Slip Op 07747
Supreme Court of the State of New York,
Appellate Division, First Department
October 29, 2009

Appellate Division Affirms Dismissal of Roadie's Labor Law Claim

Thomas Bowman, a stagehand employed by Beach Concerts, Inc., allegedly sustained injuries during the scope of his employment while assisting in the erection of a stage set for a concert to be held at the Jones Beach Theatre in the summer of 2000. The plaintiff claimed that, while loading boxes of stage set components onto a forklift, the forklift operator ran over his foot, causing a crush injury requiring surgery and leading to deep vein thrombosis.  

The plaintiff initially alleged common law negligence and violations of Labor Law sections 200 and 241(6) by two touring companies, and the section 241(6) claim was eventually discontinued.

In 2008, the Supreme Court, New York County (Braun, J.) granted the motion for summary judgment by the defendant touring companies and dismissed the section 200 and common law negligence claims. In so holding, Justice Braun found that only Beach Concerts (the plaintiff’s employer) and not the defendants, had control and supervision over the plaintiff’s work.

On appeal, the Appellate Division, First Department affirmed Justice Braun's order on the same ground. The court also found that, although it had reinstated the plaintiff's claim after a previous dismissal arising from a default, holding at that time that the claim had sufficient merit to proceed, its prior order was not “law of the case” and thus did not preclude the granting of the summary judgment to the defendants.

Carla Varriale represented the defendants.

Valdovinos v. Shore Road Apartment Corporation
21157/2005
Supreme Court of the State of New York, Bronx County
September 15, 2009

HRRV Achieves Favorable Verdict in Bronx County Labor Law Case

In Valdovinos v. Shore Road Apartment Corporation, which was recently tried before Justice Kern in the Supreme Court, Bronx County, the plaintiff claimed that Shore Road Apartment Corporation violated Section 241(6) of the Labor Law, specifically by failing to ensure that the general contractor performing work in a co-operative apartment failed to provide a guard on a table saw being used by the plaintiff to do his work. The plaintiff claimed the following injuries: a severe laceration to the left index finger with a comminuted compound fracture to the DIP joint, requiring a fusion to the distal interphangeal joint, with a skin graft and insertion of a pin; a subsequent removal of the pin; a severe laceration to the left ring finger requiring a skin graft; and a permanent injury to the flexor tendon in the left index finger, including numbness and pain.

On September 15, 2009, the jury returned its verdict, finding that the plaintiff was 75% comparatively negligent, with only 25% liability attributed to Shore Road. The total verdict was 261,375.89 (11,375.89 medical expenses; 200,000 past pain and suffering, $50,000 future pain and suffering for 45 years).

Tara C. Fappiano of HRRV tried the case on behalf of Shore Road.

Rapp B. Properties v. RLI Insurance Company and Alea North America Insurance Company
2009 NY Slip Op 06462
Supreme Court of the State of New York, Appellate Division, First Department
September 15, 2009

HRRV Obtains Reversal from the Appellate Division, First Department, in a Subrogration Action

On September 15, 2009, the Appellate Division, First Department, in reversing the lower court's decision, dismissed all claims against RLI and Alea in a subrogation action in which the plaintiff claimed more than $1 million in damages, including property damages and interest.

Plaintiff sought indemnification under the defendants' policies for damage to its building's south wall as a result of collapse. Plaintiff claimed that this was a covered peril. The alleged damage consisted of "severe cracking, bulging, splaying and displacement of the exterior brick facade." The defendants had disclaimed coverage on the ground that the damage was "due to wear & tear and gradual deterioration not collapse." The insurers' policies contained additional coverage provisions defining collapse. The lower court had denied defendants' motion for summary judgment on the grounds that there questions of fact relating to whether there was a collapse within the meaning of the policies.

On appeal, the First Department ruled that the interpretation of an unambiguous provision of an insurance contract is a question of law for the court (White v Continental Cas. Co., 9 NY3d 264, 267 [2007]. Therefore, it held that regardless of the cause or causes of the damage, it was error for the lower court to deny the insurers' motion, because there was no collapse within the meaning of the policies. Specifically, the court cited to testimony that the building and its south wall were still standing three months after the damage was observed in July of 2005. Standing alone, the testimony belied any claim that the wall's collapse was "abrupt," within the meaning of the additional coverage provisions. In addition, plaintiff's expert architect stated that he observed displacement of brick masonry units and opined that there was an "imminent risk that the wall would completely collapse." In light of the policy language, which excludes imminent collapse from the definition, the architect's affidavit did not bring the occurrence within the coverage of the policies. This was based upon another First Department case, Rector St. Food Enters., Ltd. v Fire & Cas. Ins. Co. of Conn. (35 AD3d 177 [2006]), in which the Court held that a building that was "shown to have had two-to-three-inch-wide cracks in its facade and was sinking, out of plumb, and leaning" did not meet a materially identical definition of collapse. The Court also rejected the plaintiff's argument that there was hidden "decay", a phenomenon which, by definition, does not occur abruptly.

RLI and Alea were represented by Tara C. Fappiano of HRRV. Ms. Fappiano argued the appeal to the Court.

Leonard Salati v. Janet Jackson, 10th Avenue Hospitality Group, LLC d/b/a Club Marquee, Knight Time Security of New York, Inc. and Titan Security, Inc.
Supreme Court, New York County
Index Number 101999/05
June 23, 2009

Nightclub owner granted summary judgment in assault incident and contractual indemnification against security company

Leonard Salati was a patron at Marquee, a nightclub in Manhattan, when he was allegedly assaulted by two or more nightclub security guards and/or bodyguards accompanying Janet Jackson, who was a patron at the nightclub. 10th Avenue Hospitality Group, LLC, which owns and operates Marquee, contracted with Knight Time Security to provide security guards at Marquee. The written agreement between the parties required Knight Time Security to indemnify 10th Avenue for any personal injury claims, including attorneys' fees, that might arise from any provision of the security contract.

Mr. Salati alleged that 10th Avenue negligently hired and retained Knight Time Security and negligently failed to maintain the premises in a safe manner. 10th Avenue cross-claimed against Knight Time Security, seeking full indemnification including the cost of its defense.

Justice Jane Solomon, sitting in Supreme Court, New York County, held that there was no evidence to support Salati’s negligent hiring and retention claim and dismissed said claim. As to plaintiff's negligent security claim against 10th Avenue, Justice Solomon determined that 10th Avenue had met its burden by demonstrating that security at Marquee was adequate as a matter of law based upon a lack of evidence of prior instances of violence between patrons and the fact that it hired Knight Time Security to provide security services to Marquee. Justice Solomon held that Salati failed to meet his burden to come forward with evidence that the security measures were anything but adequate. Justice Solomon also dismissed Salati's claims against Ms. Jackson based upon a lack of evidence that her bodyguard assaulted plaintiff or that anyone assaulted plaintiff at Ms. Jackson's direction.

Lastly, the court granted 10th Avenue's contractual indemnification cross-claim against Knight Time Security based upon an enforceable indemnification clause in the contract between the parties. Justice Solomon determined that the alleged incident arose out of the provisions of the security contract given Knight Time Security's admission that its security guards participated in the forcible ejection of plaintiff from Marquee. Justice Solomon further decided that Knight Time Security's argument that the indemnification agreement was void under the General Obligations Law Section 5-322.1 (a statute which concerns written agreements in the construction industry) was without merit. As such, 10th Avenue was entitled to a judgment on its contractual indemnification cross-claim against Knight Time Security in an amount to be determined.

Steven H. Rosenfeld represented 10th Avenue Hospitality Group, LLC d/b/a Marquee.

Larry Rooney v. Sterling Mets, L.P.
and the City of New York
Appellate Division, Second Department
June 23, 2009
2009 NY Slip Op 05311

Appellate Division affirms summary judgment for the City of New York

In Larry Rooney v. Sterling Mets, L.P. and the City of New York, the Appellate Division, Second Department affirmed the decision of the Supreme Court, Queens County, which granted the City of New York’s (“the City”) motion for summary judgment.

The plaintiff Larry Rooney alleged that he sustained personal injuries on August 21, 2005 when he fell as he stepped off an orange painted curb that had a missing piece, immediately outside of Shea Stadium. He alleged that Sterling and the City were negligent in their ownership, operation, maintenance and control of Shea Stadium and the subject curb. The plaintiff argued that the walkway outside of Shea Stadium was not subject to the City’s prior written notification law.

Justice Phyllis Orlikoff Flug, sitting in the Supreme Court, Queens County granted the defendants Sterling Mets, L.P. (“Sterling”) and the City’s motion for summary judgment. Justice Flug found that the purported condition was a trivial defect, lack of notice and speculation as to the cause of the fall. With regard to the City’s lack of notice, the defendants established that the City did not have prior written notice of the purported condition as required the City of New York Administrative Code §7-201(c), by submitting a copy of the Big Apple Pothole Sidewalk Protection Corporation Map for the general area outside of Shea Stadium before the date of the alleged accident. The Big Apple Map reflected that there were no recorded defects.

The plaintiffs appealed the decision, arguing that the Supreme Court erred in ruling that prior written notice was necessary in order to find that the City had notice of the purported condition and that there was a question of fact whether the City had constructive notice and whether the condition was trivial. The plaintiffs did not appeal the dismissal of Sterling from the action.

The Appellate Division, Second Department affirmed the decision of the Supreme Court, Queens County, stating that “[t]he City established its entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence that the City had no prior written notice of the alleged defective curb condition.” As a result, the Appellate Division did not consider any of the other arguments raised by the plaintiffs.

Carla Varriale represented the City of New York and Sterling Mets, L.P.

Brittany N. Polikoff, an infant under the age of 18 years, by her mother and natural guardian Robin Polikoff and Robin Polikoff, individually v. Strike Long Island, LLC
Index No. 013769/07
June 8, 2009

Summary judgment granted in go-kart accident case

Infant plaintiff Brittany N. Polikoff allegedly sustained injuries while operating a go-kart at defendant’s indoor go-kart facility. She alleged that she lost control and collided with the wall of the go-kart track after an employee of the defendant Strike Long Island, Inc. remotely increased the speed of her go-kart.

Strike moved for summary judgment on the grounds that it did not create or have notice of any alleged condition and that there was no evidence that any of its employees remotely increased the speed of the go-kart that the infant plaintiff was operating. Further, Strike argued that the infant plaintiff assumed the risk of sustaining injuries as a result of operating a go-kart and that any injuries that she sustained were a result of her own actions.

In support of the motion, Strike cited to the infant plaintiff’s deposition testimony wherein she stated that she previously had experience operating a go-kart and that she had her foot all the way down on the pedal prior to the incident occurring. Strike also submitted an affidavit from one of its employees which indicated that the plaintiff was properly instructed on how to use the go-kart and was shown a video on proper usage of the go-kart by Strike’s employees prior to the incident occurring.

In granting Strike’s motion, the court agreed that there was no evidence that Strike’s employees remotely increased the speed of the subject go-kart and as such, infant plaintiff’s argument was mere speculation. Moreover, the court agreed that the infant plaintiff assumed the risk of sustaining injuries as she had prior experience in operating go-karts and had been instructed in proper usage. The court noted that “[w]hen it is shown indisputably that a particular injury was caused by a condition or practice which is common to a particular sport…summary judgment is warranted…” (Checchi v. Soccoro 169 A.D.2d 807, 808 (2d Dept. 1991)) and held that “the prospect of the go-kart hitting the bumper of the track is an inherent risk of the activity and was foreseeable by plaintiff.” The court also agreed that the plaintiff in opposition to the motion failed to establish that the defendant created or had notice of any condition that would enhance the risks inherent in the ride. (Loewenthal v. Catskill Funland, Inc., 237 A.D.2d 262 (2d Dept. 1997).

Carla Varriale represented Strike Long Island, LLC.

Barbara Whitney Laird, as Executrix of the Estate of James Martin Laird, and Barbara Whitney Laird, individually, v. Rubin Management, Inc.
Supreme Court, Queens County
Index Number 27356/00
March 30, 2009

Summary judgment granted in wrongful death action where defendant is out-of-possession landlord and no defective condition shown

This tragic case arose out of an accident which resulted in the death of the plaintiff’s husband. The plaintiff’s decedent, James Laird, had been employed as a security guard by the third-party defendant, All-Pro Air Delivery. According to eyewitness accounts, Mr. Laird was grievously struck on the head when a stack of large metal cargo pallets tipped over and fell on top of him. Mr. Laird expired in the hospital several days later.

The subject premises were owned by Rubin Management and leased to All Pro. At the close of discovery, Rubin moved for summary judgment, arguing that the plaintiff had not presented any evidence of a defective condition which allegedly caused or contributed to Mr. Laird’s injuries. The metal pallets which allegedly struck Mr. Laird were owned by, in the control of and the responsibility of All Pro. Additionally, Rubin, an out-of-possession landlord, did not direct, supervise or control the actions of the plaintiff or any other employees of All Pro, did not have the duty to do so, and did not exercise any supervision or control over All Pro’s business operations. Rubin also did not have the duty to maintain, repair, make safe or otherwise involve itself with the transient instrumentality of the plaintiff’s accident, namely, a number of metal cargo pallets.

In support of its motion, Rubin relied in part upon the testimony of two of Mr. Laird’s former coworkers, both of whom agreed that Mr. Laird was injured by the cargo pallets, not as a result of a defective condition in the warehouse.

In granting the defendant’s motion for summary judgment, the court agreed with the defendant’s arguments and granted its motion for summary judgment, despite plaintiff’s claim of entitlement to the benefit of every favorable inference which can be drawn from the evidence as set forth in Noseworthy v. New York, 298 N.Y. 76, 80 N.E.2d 744 (1948). Rubin was successfully able to argue that, unlike the defendant in Noseworthy, Rubin did not have management, direction or control over the “thing which has produced the injury.” Here, the “thing which has produced the injury” was a stack of metal airline pallets that had been, or were actually being at the time, stacked by one of Mr. Laird’s co-workers at All Pro. Rubin’s role at the building was minor: it did not have any employees at the site, nor did it have an office in the building. Rubin did not routinely inspect the property and did not even have a key to access the building without the tenant’s assistance.

Peter Conti v. The New York City Dep’t of Parks & Recreation, et. al.
Supreme Court, Queens County
Index Number 23474/09
March 13, 2009

Summary judgment granted to the City of New York for speculative grease condition at Shea Stadium

In Peter Conti v. The New York City Department of Parks and Recreation, et. al., Justice Kevin J. Kerrigan of the Supreme Court, Queens County granted the City of New York’s (incorrectly sued as The New York City Department of Parks and Recreation) (“the City”) motion for summary judgment dismissing all claims and cross-claims asserted against it.

The plaintiff was allegedly injured on May 4, 2006 at Shea Stadium (“the Stadium”) when, during the course of his employment by Liro Kassner, Inc., a contractor hired by the City, he slipped and fell on a purported grease condition on a course floor. He alleged that the City was negligent in maintaining the concourse in near total darkness and permitting the maintenance contractor, Harvard Maintenance, Inc. (“Harvard”), to power wash the premises causing grease to spread on the floor. The plaintiff also claimed that Harvard was negligent in failing to contain the water from its power washing.

The Court held that it was not undisputed that the City did not create the alleged dangerous condition and that it was not even a party to the cleaning maintenance contract with Harvard. Furthermore, the Court stated that even if there was an issue with regard to whether the City performed the cleaning and power washing of the Stadium, there was no evidence “as to the origin of the alleged greasy spot where plaintiff fell” as the plaintiff, himself, “characterized his allegation that the slippery condition was caused by power washing as mere speculation.” Judge Kerrigan also concluded that the City demonstrated that it had no actual or constructive notice of the purported condition as the evidence established that there were no prior complaints and the plaintiff admitted that he had no problem walking on the concourse that morning until he stepped on the specific spot where his accident occurred. The Court also noted that “[i]n the absence of any proof as to how long the specific greasy puddle existed, any conclusion that the City had a reasonable opportunity to correct the condition would be pure speculation.” The plaintiff failed to demonstrate a nexus between the allegedly poor lighting and the accident as, among other things, the plaintiff admitted he could see the floor.

Judge Kerrigan also granted Harvard’s motion for summary judgment, finding that it did not create the condition, that there was no evidence that the power washing caused the slippery condition and that it did not have actual or constructive notice of the condition.

Carla Varriale represented the City.

Morris v. Red Rock West Saloon
Supreme Court, New York County
Index Number 108273/05
February 24, 2009

Summary judgment granted in to bar owner dismissing claim of patron injured while dancing on the bar

Valerie Morris was a patron at Red Rock West Saloon, a bar where the bartenders regularly dance on the bar and sometimes invite the patrons to do the same. Ms. Morris accepted such an invitation and fell from the bar while dancing, allegedly slipping on a wet spot, sustaining a serious ankle injury requiring multiple surgeries. Focusing on plaintiff’s testimony that she climbed up on the bar voluntarily (albeit in response to an invitation from a bartender), was not concerned or nervous about falling from the bar while she was dancing, but that she recognized that there was a possibility that she could fall and that she was aware that bar tops can be wet, Justice Michael Stallman held that the doctrine of primary assumption of risk applies to leisure activities, including dancing and granted Red Rock’s motion for summary judgment.

Recognizing that “voluntary participants in activities where there is an elevated risk of danger, typically sporting and entertainment events, may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation, “ Justice Stallman noted that the plaintiff's own testimony established that she voluntarily assumed the risk of injury by dancing on top of the bar, recognizing that there was a possibility that she could fall.

Justice Stallman also rejected plaintiff's claim that Red Rock unreasonably increased the risk of injury by periodically creating a line of fire on the bar top, noting her own testimony that there was no dancing on the bar top during the fire show and that the bar staff puts out the fire and presumably cleans the bar top before dancing is resumed. Lastly, Justice Stallman said that plaintiff's conclusory assertion that the invitation to patrons to dance on the bar top in and of itself increased the risk of injury was a non sequitur and speculative.

Steven H. Rosenfeld represented Red Rock West Saloon.

Michael Raynor v. Shock Doctor, Inc. and Blanchette’s Sporting Goods, Inc.
United States District Court, District of Connecticut
February 11, 2009

Federal court denies plaintiff's motion to remand to Connecticut Superior Court

 In Raynor v. Shock Doctor, Inc., Judge Warren W. Eginton, sitting in the United States District Court, District of Connecticut, denied plaintiff’s motion to remand the action back to the Superior Court, State of Connecticut.

 This products liability case arose from an accident wherein the plaintiff, a student at Yale University, was injured during a men’s lacrosse game while using an athletic supporter. The supporter had been manufactured by the defendant Shock Doctor, Inc. (“Shock Doctor”), a Minnesota corporation. The product had been sold to the Yale University Lacrosse team by the defendant Blanchette’s Sporting Goods, Inc. (“Blanchette’s”), a Connecticut corporation. The plaintiff, who was a college student living in Connecticut at the time of the incident and at the time the lawsuit was commenced, claimed to be a citizen of the state of Connecticut.

Approximately seven months after the lawsuit had been commenced in Connecticut Superior Court, well after the 30-day period to remove prescribed by 28 U.S.C. § 1446(b), the defendants were provided with discovery, including the plaintiff’s medical records, voting registration and other records, which suggested that the plaintiff had not established sufficient ties with the state of Connecticut to qualify as a citizen of that state.

Upon receipt of this information, Shock Doctor promptly filed a notice of removal to the United States District Court, District of Connecticut. In response, the plaintiff moved to remand the action back to the Connecticut Superior Court. The plaintiff argued against removal on several fronts: first, that he was in fact a citizen of the State of Connecticut, short-circuiting the defendants’ claim of complete diversity; second, that Shock Doctor had failed to obtain the consent of Blanchette’s before removing the case to Federal Court, a necessary prerequisite pursuant to 28 U.S.C. § 1446; and third, that the removal was untimely as it was made beyond the statutory 30-day period to remove.

In response, the defendants argued first that college students generally retain the domicile of their parents while they attend university. Courts have recognized a presumption that a college student retains the domicile of his parents even where he travels outside of his home state for university and has no intention of returning to his home state. See, Glasford v. Schreier, 2004 U.S. Dist. LEXIS 12025 (S.D.N.Y. June 30, 2004). An example was found in the recent case of Jordan v. Verizon Corp., 2008 U.S. Dist. LEXIS 100449 (S.D.N.Y. Dec. 10, 2008). The Court in Jordan noted that “a college student may reside in the college town, but her citizenship may remain that of her parental home, even if she intends never to return, if she does not have a fixed intention to remain in the sate where she attends school, but hopes instead to move to some other state to seek employment. Only when she takes up residence in a new state with the intent to remain there indefinitely does she establish a new domicile, and thus a new citizenship.” Id. at 13 n.5.

The defendants also argued that Shock Doctor’s insurance carrier had recently accepted the defense and indemnification of Blanchette’s. Thus, the defendants were subject to an exception to the “global consent” rule found in 28 U.S.C. § 1446(b), as Blanchette’s had become a nominal or formal party. This exception was seminally set forth in the case of Edelman v. Page, 535 F.Supp. 2d 290, 293 (D. Con., 2008):

“[t]he unanimity rule is subject to three pivotal exceptions… [A] party asserting proper removal may raise an exception to the unanimity rule when: (1) the non-joining defendants have not been served with service of process at the time the removal petition is filed; (2) the non-joining defendants are merely nominal or formal parties…

Id. at 293 (emphasis added).

Finally, the defendants argued that their Notice of Removal was not untimely. Although 28 U.S.C. § 1446(b) does prescribe a 30-day period of time during which a case can be removed to Federal Court, it also prescribes that this rule only applies when the case is, on its face, removable. However, “[i]f the case stated by the initial pleadings is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleadings, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable…” 28 U.S.C. § 1446(b).

Within his initial pleading, the plaintiff represented that he is a resident of the state of Connecticut. Research and investigation revealed that the plaintiff was in fact domiciled in New Jersey, the home of his parents, at the time that this lawsuit was commenced. At the time of the plaintiff’s accident and at the time that this matter was filed, he was a college student at Yale University and a dependent of his parents, who are residents of the State of New Jersey living in the Town of Princeton, County of Mercer, State of New Jersey. Investigation also revealed that the plaintiff was registered to vote in New Jersey, that he had listed his residence in New Jersey to his school, and that he represented himself as a New Jersey resident to medical and insurance providers. According to well-established law, the plaintiff was a resident of New Jersey.

This information filled the gap in the “case stated” by plaintiff’s initial pleading of residence in Connecticut and triggered a new 30-day period in which to file a Notice of Removal pursuant to 28 U.S.C. 1446(b). The Notice of Removal was then filed within the new 30-day period.

The Court agreed with the defendants’ arguments and denied the plaintiff’s motion to remand.

Lawlor v Hoffman
Supreme Court of the State of New York,
Appellate Division, Second Department
2009 NY Slip Op 01088
February 10, 2009

Appellate court affirms holding that plaintiff can not continue action against corporate shareholders and officers based on failure to offer evidence of complete domination or control over the corporate affairs

In Lawlor v. Hoffman, the Appellate Division, Second Department affirmed a Supreme Court, Queens County order granting summary judgment to two shareholders and officers of a corporation which owned and operated a Manhattan bar. Plaintiff sought to include the two individuals as defendants. The Appellate Division held that plaintiff had not offered evidence that the defendants had abused the corporate form.

The plaintiff alleged that he was physically assaulted by a patron while in a bar. The defendants were shareholders and officers of the corporation that owned the bar. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them on the basis that they can not be held personally liable as officers and shareholders of the corporation.

The Appellate Division noted that a party seeking to pierce the corporate veil must establish that "(1) the owners exercised complete domination of the corporation in respect to the transaction attacked and (2) that such domination was used to commit a fraud or wrong against the plaintiff which resulted in plaintiff's injury."  Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135,141) and that the defendants abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court of equity will intervene. See Millenium Constr., LLC v Loupolover, 44 AD3d 1016).

The court held that the defendants demonstrated that they were acting only as officers and stockholders in performing corporate business; and that the plaintiff failed to offer any evidence that the defendants were not acting within their corporate capacity or that they exercised complete "domination" or control over the corporate affairs that required further inquiry.

Steven H. Rosenfeld represented the defendants.

Reiss v. Ulster County Agricultural Society
Supreme Court, Suffolk County
Index Number 06-7149
February 9, 2009

Summary judgment granted in negligence action brought by concession vendor at county fair

The Supreme Court, Suffolk County granted summary judgment dismissing the negligence complaint of Susan Reiss, a food concession vendor who was injured when she slipped and fell on wet hay at the Ulster County Fairgrounds in New Paltz, New York. Ms. Reiss alleged that the Ulster County Agricultural Society was negligent because it spread hay on wet, muddy walkway areas of the fairgrounds, thereby creating a hazardous condition on the property. As a result, she slipped and fell and sustained a fractured ankle, which required surgery. Her husband asserted a derivative claim.

The Court determined that the Ulster County Agricultural Society met its burden as the movant for summary judgment. The Court was persuaded that when Ms. Reiss exited her truck, it was raining and she was aware of the rainy and muddy condition. As such, she assumed the risk of injury. The alleged condition was open and obvious and not inherently dangerous as a matter of law. The Court further held that the plaintiff speculated as to the cause of her accident. Moreover, the Court noted that the fair had closed two hours earlier and that the Ulster County Agricultural Society was no longer in possession or control of the premises at the time of the accident. Plaintiffs failed to rebut the evidence adduced by the Ulster County Agricultural Society and the motion for summary judgment was granted as a matter of law.

Carla Varriale represented the Ulster County Agricultural Society.

Norman Cohen v. Sterling Mets, L.P.
Supreme Court of the State of New York,
Appellate Division, Second Department
2009 NY Slip Op 495, 2009 N.Y. App Div. Lexis 531 (2009)
January 27, 2009

Appellate court affirms granting of summary judgment in negligence case arising out of t-shirt launch promotion – holing vendor assumed risk of injury

Although the 2009 baseball season has not yet started, Sterling Mets, L.P. (“Sterling”) has obtained its first victory. New York’s Appellate Division, Second Department affirmed the Supreme Court, Queens County’s summary judgment decision in a unique negligence action involving a vendor at Shea Stadium (the “Stadium”).

In Norman Cohen v. Sterling Mets, L.P., the plaintiff alleged that while he worked as a concession vendor at the Stadium, he sustained personal injuries after he was struck by a spectator who sought a t-shirt that had been “launched” into the stands. The t-shirt launch is a promotional activity and is a common feature at many sporting events. Prior to the t-shirt launch, Sterling provided announcements than the t-shirt launch was about to begin and provided security personnel during the event.

In dismissing the plaintiff’s negligence action against Sterling, the Supreme Court, Queens County held that Sterling established that it was entitled to summary judgment because it did not breach a duty of care to the plaintiff based upon the doctrine of assumption of the risk (which has extensive application in cases involving spectators and participants) of an open obvious condition. As a seasoned vendor who had worked at the Stadium and other venues for years, the plaintiff unquestionably appreciated the risks that were associated with working in unprotected parts of the Stadium. The Court also noted that spectators’ alleged frenzied and dangerous reaction to the t-shirt souvenirs was no different that their effort to obtain a souvenir baseball. The Court further held that a spectator at a sporting event is deemed to have consented to those risks commonly appreciated which are inherent in and arise out of the event—those risks include the risk of injury presented because bats, balls or t-shirts may enter the stands. The Court held that the plaintiff's arguments that the t-shirt toss was conducted in between innings and is a promotional activity that is not a part of the game were "without merit." The Court rejected the plaintiff’s arguments that the assumption of the risk was not a defense because he failed to demonstrate that he was under an economic or other compulsion to work during the t-shirt launch, notwithstanding his concerns about the purported dangerous condition.

The Appellate Division, Second Department affirmed, holding that Sterling demonstrated its entitlement to judgment as a matter of law based on the doctrine of primary assumption of the risk. In opposition, the plaintiff failed to raise a triable issue of fact.

Carla Varriale represented Sterling Mets, L.P.

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