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HRRV in the Courtroom 2017

Sirianni v. Town of Oyster Bay
Appellate Division, Second Department
Index No. 6666/2012
A.D. Docket No. 2016-03782
December 13, 2017

On Appeal, Patch of Mud Deemed Open and Obvious and Not Inherently Dangerous, Dismissing Youth Baseball Spectator’s Claim

Plaintiff Marian Sirianni was allegedly injured on June 12, 2011 while watching her grandson play youth baseball at Picken Field in Massapequa, New York. She had been standing in a spectator area behind one of the dugouts and began walking toward the field to say good-bye to her grandson. While doing so, she slipped in a patch of mud in the spectator area, sustaining injuries.

Sirianni thereafter commenced suit against the Town of Oyster Bay, which owned the public park in which the baseball field was located, and Plainedge Youth Baseball League (PYBL), the organizer of the baseball game. She alleged, among other things, that both defendants were negligent in their maintenance of the grounds surrounding the field, such that they should be held liable for negligence.

HRRV, on behalf of PYBL, moved for summary judgment on the basis that the patch of mud in question was open and obvious and not inherently dangerous as a matter of law. Similarly, in addition to other contentions, HRRV argued that the condition was a naturally occurring topographic condition that was not actionable as a matter of law. On these points, the deposition testimony of Sirianni’s ex-husband was submitted, who testified that he consciously avoided mud throughout the spectator area of the field. Certified weather reports were also submitted, among other evidence, establishing that it had rained on the day of the accident, and on each of the three days leading up to it. The Town of Oyster Bay cross-moved with similar arguments.

Sirianni’s counsel opposed the motion, largely on the basis of the opinion of an expert, who opined that various structural deficiencies in the park somehow caused the patch of mud in question. HRRV argued that the expert’s opinions should be given no weight, as they were speculative, conclusory and without any independent factual basis.

HRRV’s motion on behalf of PYBL was initially denied by Judge Angela Iannacci of Supreme Court, Nassau County. In a brief decision, the judge held that both PYBL and the Town of Oyster Bay had failed to meet their entitlement to judgment as a matter of law and that, in any event, Sirianni raised a triable issue of fact.

However, on appeal, the Appellate Division, Second Department reversed, dismissing Sirianni’s negligence action in its entirety. The appellate court determined that the evidence established that “the mud condition of the field, caused by rain, was an open and obvious condition readily observable by those employing the reasonable use of their senses, and not inherently dangerous.” As it relates to the plaintiff’s opposition, the Appellate Division, Second Department similarly agreed with HRRV, holding that the opinions of the expert in question were “conclusory and speculative and with no independent factual basis.”

Carla Varriale and Shawn Schatzle represented Plainedge Youth Baseball League.

Marc v. Middle Country Center School District, Long Island Flag Football League, Inc.
Supreme Court, Suffolk County
Index No. 3015/16
December 11, 2017

Court Grants Summary Judgment to Flag Football League and Property Owner, Holding that New York General Obligations Law § 5-326 Does Not Void Release

Murat Marc was allegedly injured during a flag football game, when he jumped to catch a pass and landed on a sprinkler head, which he claimed to be concealed. The game was being played on a field located on the grounds of Newfield High School, owned by Middle Country Center School District. Prior to playing in the football game, the plaintiff executed a waiver and release of liability, releasing the Long Island Flag Football League as well as the owner of the field from liability for personal injuries arising out of his participation in the league.

In support of the motion, the defendants argued that by signing the release, the plaintiff effectively released the defendants from liability for any injuries the plaintiff sustained during the game.

When a participant pays a fee to use recreational facilities, or pays fees to a league, which are used to pay for the use of those facilities, a waiver and release of liability executed by the participant is void pursuant to New York General Obligations Law (GOL) § 5-326. In order to void a release pursuant to GOL § 5-326, there must be an evidentiary showing that the individual paid a fee for use of the facility.

At the outset, Justice Peter H. Mayer, sitting in Supreme Court, Suffolk County, found that the defendants had established a prima facie entitlement to dismissal of the plaintiff’s complaint by producing the subject release. The documentary evidence further established that the plaintiff did not pay a fee to use the field where he was allegedly injured, and that no portion of the Long Island Flag Football League fees were used to pay for use of the subject field. As such, Justice Mayer determined that the release signed by the plaintiff is not void as against public policy pursuant to GOL § 5-326, and all claims against the defendants were dismissed.

Carla Varriale, Lindsay Kaplow and Michelle Bochner represented Middle Country Central School District and Long Island Flag Football, Inc.

McCall v. 1394 B.P.R. Realty Corp.
Supreme Court, Bronx County
Index No. 22836/2013
October 26, 2017

Courts Finds No Actionable Defect for a Smooth Tub and Grants Summary Judgment

Plaintiff claimed in this case that she slipped and fell in her bathtub in her apartment. She had previously complained about the tub, and HRRV’s clients, the building owner and management company, hired defendant Porcelain Refinishing to refinish the tub, which was done without complaint about one week before the accident date. The plaintiff claimed she slipped and fell only because the tub now was “slippery.” She said she was told to place down a mat and failed to do so. There was also evidence that mats that would not harm the finish were to be supplied directly by Porcelain, by request, and that Porcelain gave instructions for the maintenance of the tub directly to the tenants.

Porcelain moved for summary judgment and argued it was an independent contractor, not liable to the plaintiff. It also argued that the alleged “defect,” a smooth tub, was not a defective or hazardous condition. HRRV moved for summary judgment on the same grounds, a lack of hazardous condition, and also argued no additional duty to provide a mat. To the extent there was any question of there being a hazard, HRRV argued, the building owner and management company were entitled to indemnity from Porcelain, which created the condition.

Justice Mary Ann Briganti, sitting in Supreme Court, Bronx County, found that all defendants made out a prima facie case that there was no actionable defect in the tub, as there is no actionable defect for a smooth tub absent proof of a defect in the surface, or deviation for some industry standard. The mere allegation of a slippery tub is not enough to impute negligence. The court went on to state that even if the tub was slippery, there is no duty on landowners to provide a nonskid surface in bathtubs. The plaintiff failed to raise a question of fact in opposition to the motions.

Tara C. Fappiano and Tiffany R. Fendley represented 1394 B.P.R. Realty Corp. and Genesis Realty Group.

Rogers v. Herrill Bowling Corp.
Supreme Court, Nassau County
Index No. 604589/2015
October 23, 2017

Summary Judgment Granted in Bowling Alley Trip-and-Fall

HRRV secured summary judgment for defendant Herrill Bowling Corp. in a trip-and-fall case brought in Nassau County Supreme Court.

Ellen Rogers claimed that on November 4, 2014, Herrill, which operated a bowling alley known as Herrill Lanes, negligently allowed a bowling ball bag — belonging to and set down by fellow patron and defendant Everett Freed — to remain on the concourse. Rogers tripped on the bag en route to the restroom, and as a result, she claimed to have fractured her clavicle, pelvis and multiple ribs.

At her deposition, Rogers acknowledged that Freed placed the bag on the concourse and that she had no idea how long the bag had sat on the floor. Notably, she agreed that an incident report narrative, prepared just after the fall, was accurate; the document stated that the plaintiff tripped over the bag and ball. Rogers also admitted that she was looking up while she was walking and had no trouble seeing where she was going. Meanwhile, Herrill’s general manager — who walked the alley floor 20 to 40 times per day — was in the area just 10 minutes prior to the plaintiff’s fall and saw no bag on the concourse.

HRRV moved for summary judgment on Herrill’s behalf, on the grounds that it did not breach any duty owed to the plaintiff; the record confirmed that Herrill did not cause or contribute to the plaintiff’s fall or have actual or constructive notice of the condition that did. In fact, there was no record of similar prior incidents, no reason to supplement Herrill’s already-sufficient maintenance procedures and no indication that Herrill staff knew of the bag until after the plaintiff fell.

In a fact intensive decision, Justice Karen Murphy, sitting in Supreme Court, Nassau County, granted Herrill summary judgment on all claims. Because written discovery and depositions revealed no remaining material issues of fact, the case was ripe for judgment on the merits, and the court found that Herrill did not cause, create or have notice of the condition that caused the plaintiff’s injuries. The testimony from Herrill’s general manager was particularly instrumental in helping Herrill establish that it did not have notice, meeting its burden on summary judgment. Interestingly — and despite the plaintiff’s acknowledgment that she tripped over a bowling ball bag — the court further found certain ambiguities in the plaintiff’s testimony, and concluded that the plaintiff, in sum, did not actually know what caused her to fall. As a result, the court dismissed all of the plaintiff’s claims.

Steven H. Rosenfeld and Andrew J. Curtin represented Herrill Bowling Corp.

Faith Ministries, Inc. v. Program Brokerage Corp.
Supreme Court, New York County
Index No. 653213/2016
September 20, 2017

HRRV Secures Summary Judgment Victory in Broker Malpractice and Breach of Contract Action

HRRV obtained summary judgment in a broker malpractice and breach of contract action on behalf of Program Brokerage Corp. (PBC), an affiliate of Hub International Northeast (Hub). Plaintiff Faith Ministries, Inc. sought in excess of $1.3 million in damages for an alleged breach of contract by its retail insurance broker, RSA Insurance Agency; its principal, Mark Losavio (collectively RSA); and the wholesale broker, PBC.

On or about October 29, 2012, the plaintiff sustained property damage to properties located at 329-331 East 94th Street, 335 East 94th Street and 339 East 94th Street in New York, New York (collectively “the Property”) as a result of Hurricane Sandy. The alleged damage sustained by the Property included water damage to Faith Ministries’ equipment, business income losses and extra expense losses.

Through RSA, the plaintiff had obtained insurance policies from Praetorian Insurance Company, Technology Insurance Company and Continental Casualty Company. The plaintiff submitted claims to Praetorian, Technology and Continental for the damage sustained to the Property. Each insurer denied the claims and did not pay damages to Faith Ministries. Subsequently, Faith Ministries commenced a claim against Praetorian, Technology, Continental and PBC in the Eastern District of New York. However, the case was promptly dismissed as against PBC due to lack of diversity jurisdiction.

Faith Ministries then commenced an action in the Supreme Court of the State of New York, New York County against RSA and PBC. Faith Ministries alleged that PBC and RSA obtained insurance policies from Praetorian, Continental and Technology to cover the Property and that those policies failed to provide flood and/or sewer back-up coverage for the Property, which defendants allegedly agreed to procure for Faith Ministries. The plaintiff claimed that the defendants breached the agreement by failing to procure the requested coverage. Faith Ministries sought damages for the alleged failure to procure adequate insurance coverage.

Despite commencing a breach of contract action against PBC, the plaintiff admitted that it did not have a written contract with PBC. Instead, the plaintiff argued that Faith Ministries and PBC had a contract implied in fact because PBC underwrote the Praetorian policy for Faith Ministries. Faith Ministries further argued that PBC owed a duty to Faith Ministries and was obligated to know that the Property was located in a flood zone. Finally, the plaintiff argued that further discovery was necessary to ascertain whether PBC was responsible for the failure to procure adequate insurance.

PBC argued that it did not have a contractual relationship, express or implied, with Faith Ministries. PBC, as a wholesale broker, serves as an intermediary between the retail broker and the insurers. Accordingly, HRRV argued that PBC had a relationship with the retailer broker, RSA, and the insurer, but not with the insured, Faith Ministries. Indeed, PBC’s contract in connection with this matter was with RSA, and not with the plaintiff. PBC and RSA’s contractual agreement clearly and explicitly placed responsibility on RSA to determine that the quote provided by PBC provided the coverage requested by Faith Ministries.

Moreover, PBC argued that Faith Ministries failed to properly plead with specificity the details of an implied contract with PBC. PBC also contended that it did not owe a duty to Faith Ministries and demonstrated that there was no special relationship with Faith Ministries nor privity between PBC and Faith Ministries as Faith Ministries was not PBC’s client.

Justice Charles Ramos of the Commercial Part of the Supreme Court, New York County agreed with PBC and dismissed the action against it. The court found that the plaintiff failed to state a claim for breach of contract. The court reasoned that first, plaintiff admitted that it did not have a written contract with PBC, and second, the complaint only contained vague allegations that failed to describe PBC’s conduct with respect to the plaintiff. The court found the plaintiff’s arguments on this point unavailing and held that “[b]ecause no express contract exists between plaintiff and PBC, and the facts are inconsistent with the existence of a contract-implied-in-fact and against the declaration of the party to be charged, plaintiff’s cause of action for breach of contract is dismissed as against PBC.” (internal quotations omitted). The well-reasoned, fairly lengthy decision was a complete win for PBC, and the plaintiff did not appeal the decision.

In the same decision, the court dismissed RSA’s cross-claims for common-law and contractual indemnification and contribution against PBC. HRRV argued that RSA’s cross-claims must be dismissed because: (1) common-law contribution is unavailable in a breach-of-contract action; (2) RSA, as the retail broker, cannot seek common-law indemnification from PBC, the wholesale broker, because RSA was the one with the duty to ensure adequate coverage for plaintiff; and (3) the agreement entered into between RSA and PBC grants PBC a claim for contractual indemnification against RSA.

The court again agreed with PBC. It held that as the only cause of action in the complaint was for breach of contract, contribution was unavailable and therefore RSA’s cross-claim for contribution was dismissed. The court further found that RSA and PBC’s agreement specified that PBC had no relationship or contact with the insured, and since the predicate of common-law indemnity is vicarious liability without actual fault, and liability against RSA would be based upon the defendants’ own participation in the acts giving rise to the loss, the cross-claim for common-law indemnification was dismissed. Accordingly, PBC was granted a second complete win.

Abbie Havkins represented Program Brokerage Corp.

Luciani v. Fun Central
Supreme Court, Dutchess County
Index No. 2921/2014
August 22, 2017

Curbing Around Miniature Golf Course Hole Deemed Not Inherently Dangerous and Readily Observable, Resulting in Dismissal of Infant Plaintiff’s Negligence Action

Philip Luciani went to a miniature golf course known as Fun Central in Wappinger Falls, New York with his daughter, infant plaintiff I.L., on July 2, 2011. While playing through the course, I.L. tripped as a result of a brick curb surrounding one of the holes, sustaining injuries.

Luciani thereafter filed suit against Redl Real Estate, LLC, the owner of the property, and Fun Central, Inc., the tenant at the time of the accident and the operator of the miniature golf course. He asserted that the course was defectively designed and constructed, among other allegations, such that the named defendants were liable for negligence. HRRV represented both defendants during the course of the litigation.

HRRV retained miniature golf expert Arne Lundmark to conduct an inspection of the course. He did so approximately six years after the accident, although the structural condition of the course was in the same condition as it was on the date of the accident. Lundmark effectively opined that there was nothing defective or dangerous about the curbing in question, and that the course was designed within industry standards.

Based largely on Lundmark’s inspection, as well as the deposition testimony of the parties and photographs of the area in question taken shortly following the accident, HRRV moved for summary judgment, effectively arguing that there was no defect that the defendants could otherwise potentially be held liable for. In opposition, Luciani’s counsel argued that questions of fact existed as to whether the curbing in question was defective, although no expert opinion was submitted on the issue.

HRRV’s motion was ultimately granted by Justice Christine Sproat of Supreme Court, Dutchess County. The judge noted that the photographs revealed no visible defects, and she gave credit to the opinions of Lundmark. She held that “the curbing upon which [the infant plantiff] allegedly fell was not an inherently dangerous condition and was readily observable,” warranting dismissal as a matter of law.

Carla Varriale and Shawn Schatzle represented Redl Real Estate, LLC and Fun Central, Inc.

Coyle v. Miele Sanitation Company
Supreme Court, Rockland County
Index No. 033824/2014
July 14, 2017

Landlord Granted Summary Judgment in Contractual Indemnification Claim Against Tenant-Employer in Relation to Work-Related Injury on Leased Premises

On October 2, 2012, plaintiff Stephen Coyle was allegedly injured in the course of his employment as a mechanic and maintenance worker with En-Tech Corp., a company that specialized in trenchless sewer rehabilitation. Coyle was working at a warehouse location in Tappan, New York that served primarily as a maintenance facility for En-Tech trucks and other equipment. He was performing maintenance on a truck in a parking lot at the premises when he allegedly tripped as a result of a pothole or similar defect. The lot was utilized exclusively by En-Tech.

Joseph and Gloria Miele owned the property and leased it to En-Tech. The lease agreement contained an insurance procurement provision and an indemnification provision, requiring En-Tech to indemnify the Mieles for “all claims and liabilities resulting from any acts or omissions by the tenants or for any claim arising out of by reason of occupancy of the premises by the tenant or business of the tenant.”

As a result of his alleged accident, Coyle filed a negligence action against the Mieles. HRRV, on behalf of the Mieles, tendered the defense and indemnity to En-Tech and its insurer, as per the terms of the lease agreement. En-Tech’s insurer denied coverage, largely on the basis of a lease addendum that contained a provision that the Mieles were responsible for maintaining the exterior of the building, including parking areas. On this basis, En-Tech’s insurer asserted that the Mieles were not entitled to indemnification from En-Tech because they were potentially actively negligent. HRRV then filed a third-party action against En-Tech, primarily seeking to enforce the contractual indemnification provision.

At the close of discovery, En-Tech’s counsel moved for summary judgment on the grounds that the contractual indemnification could not be enforced. In addition to the arguments previously raised by En-Tech’s insurer, counsel for En-Tech argued that enforcement of the lease agreement would violate New York’s General Obligations Law (GOL) § 5-321.

HRRV filed a cross-motion for summary judgment seeking enforcement of the contractual indemnification provision. HRRV argued that the contractual indemnification provision evidenced a clear intent for En-Tech to indemnify the Mieles for claims such as the one filed by Coyle. In addition, it was submitted that enforcement of the indemnification provision would not violate the GOL, as the provision was part of a commercial lease negotiated at arm’s length, and that it was in conjunction with an insurance procurement requirement. As such circumstances constituted an exception to the general rule set forth in the GOL, HRRV argued that the provision had been triggered in favor of the Mieles and must be enforced, among other arguments.

Justice Thomas Walsh of Supreme Court, Rockland County granted HRRV’s cross-motion for summary judgment on behalf of the Mieles and denied counsel for En-Tech’s motion. The judge noted the applicability of the exception to the GOL, regardless of the Mieles potential negligence, and held that the indemnification provision required En-Tech to indemnify the Mieles “with respect to any personal injury claims arising out of any occurrence on the premises.”

Carla Varriale and Shawn Schatzle represented Joseph and Gloria Miele.

Marrero v. Liberty Janitorial Services, LLC
Supreme Court, Kings County
Index No. 500403/2014
June 26, 2017

HRRV Secures Defense Verdict in Kings County Slip and Fall

Ater a multiday jury trial in the Supreme Court, Kings County before Justice Loren Baily-Schiffman and with less than one hour of deliberation, the jury returned a defense verdict in favor of HRRV’s client, Liberty Janitorial Services. Up to and through the trial, the plaintiff’s counsel conditioned settlement on payment of the entirety of our client’s $1 million commercial general liability policy.

The plaintiff alleged that she slipped and fell on a bathroom floor within a commercial building due to the alleged negligence of Liberty, the building’s commercial cleaning contractor. As a result, the plaintiff alleged, she was forced to undergo two knee surgeries and claimed millions of dollars in economic loss, which the plaintiff supported through an expert life care planner.

During trial, Gail L. Ritzert cross-examined the plaintiff, making pointed inquiries about the plaintiff’s cellular telephone use around the time of the incident. After the plaintiff denied use of her cellular telephone at the time of alleged incident, Ritzert confronted the plaintiff with her very own cellular telephone records, which had been obtained during discovery and subpoenaed for trial. The records confirmed that the plaintiff was using her cellular telephone around the time of the alleged incident and thereby distracted.

The jury was swayed that the plaintiff’s rendition of events lacked credibility as she was not candid about her cellular telephone use.

Gail L. Ritzert and Robert Coleman represented Liberty Janitorial Services, LLC.

Priola v. Herrill Bowling Corp. d/b/a Herrill Lanes
Supreme Court of the State of New York
Appellate Division, Second Department
2016-03450
May 24, 2017

Appellate Division Affirms Dismissal of Bowling Lane Fall Claim

Plaintiff, who was bowling with her usual Tuesday league at the defendant’s bowling alley, claimed that her foot became stuck to the wooden floor of the approach while she was about to release her ball into the lane. The plaintiff fell forward into the lane and allegedly was injured when she fell.

The defendant moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion. The Appellate Division affirmed, holding that in a premises liability case such as this, involving a slip and fall allegedly caused by a dangerous condition, a plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation

The Court noted that the defendant established its entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the plaintiff, which demonstrated that the plaintiff was unable to identify the cause of her fall. The Court also noted that, in opposition, the plaintiff failed to raise a triable issue of fact.

Steven H. Rosenfeld represented Herrill Bowling Corp.

Margaret Bangerter v. Best Western Mill River Manor and Incorporated Village of Rockville Centre
Supreme Court, Nassau County
Index No. 878/15
May 11, 2017

Omission by a Municipality Does Not Exempt Plaintiff’s Claims from the Prior Written Notice Requirement

Plaintiff Margaret Bangerter was injured when she slipped and fell on ice in a parking lot owned and maintained by the Incorporated Village of Rockville Centre on February 17, 2014. The plaintiff filed a lawsuit in Supreme Court, Nassau County against the Village of Rockville Centre (“Village”) alleging that the Village failed to properly remove snow and ice from the subject parking lot.

On behalf of the Village, HRRV moved for summary judgment, arguing that the claims against the Village must be dismissed as the Village did not have prior written notice of the alleged condition and did not exacerbate the alleged condition. HRRV argued that the Village has enacted a prior written notice statute, which excuses it from liability absent proof that the Village had prior written notice of the defect giving rise to the plaintiff’s injury. Further, we argued that an exception to this rule did not apply as the Village did not create the alleged condition. In support of our motion, HRRV submitted affidavits from the codirectors of the Department of Public Works indicating no prior written notice was received regarding the alleged condition and the Village removed snow in accordance with its procedures prior the plaintiff’s fall.

The plaintiff opposed our motion arguing that the Village did not salt the subject lot and therefore contributed to the icy condition upon which the plaintiff fell. The plaintiff argued that there were omissions in the Village’s snow removal records. Specifically, the plaintiff argued that the word “salt” was noted on February 15, 2014; however, the records did not indicate where the salt was deposited throughout the Village.

Justice Jeffrey Brown agreed with HRRV’s position and granted our motion in its entirety holding that the Village’s prior written notice statute is applicable to the subject parking lot and no prior written notice was given to the Village. In addition, Justice Brown pointed out that the parking lot was plowed on February 14 and 15, 2014 and that there was no additional snowfall after February 14, 2014. Further, Justice Brown pointed out that the plaintiff’s speculation as to the Village application of salt, without more, cannot raise a triable issue of fact “as passive failure to remove all snow from a particular area cannot give rise to liability, failure to salt a particular area likewise cannot give rise to liability.” Therefore, as the alleged failure to apply salt is an act of omission, the plaintiff’s claim is not exempt from the prior written notice requirement.

Susan B. Boland represented Incorporated Village of Rockville Centre.

Duchatellier v. Trama’s Auto School, Inc.
Supreme Court, Queens County
Index No. 707829/2016
May 3, 2017

Waiver and Release Results in Summary Judgment for Motorcycle Training School

Plaintiff alleged to have been injured while taking a motorcycle lesson at defendant Trama’s Auto School. On the date of the alleged incident, the plaintiff was provided with a registration form, also containing a release and waiver. Plaintiff completed the signed document and executed the releases and waivers contained within the registration form.

HRRV moved for summary judgment on behalf of the defendant, and argued that the release contained an acknowledgment of the dangers and risks assumed in using motorcycles, motorcycle equipment and participation in any activities and that the plaintiff would be “relinquishing any and all rights [he] now ha[s] or may have in the future to sue the Safety Course Providers for any and all injury, damage, or death [he] may suffer arising from motorcycle riding or its equipment, including claims based on the Safety Course Providers’ negligence.” We argued that the release was not void under New York General Obligations Law § 5-326, since instruction constitutes an exception thereto, as opposed to recreational activities. The release and waiver of liability undeniably precluded the plaintiff from asserting any claims against the defendant.

Plaintiff cross-moved seeking to dismiss the affirmative defense that spoke to the release and waiver. Plaintiff argued that the contract was fraudulent and one of adhesion.

Relying on a long string of New York appellate level cases, the court held that the release and waiver was enforceable. The court also held that the plaintiff's argument that the registration form was fraudulent in a contract of adhesion was unpersuasive, especially given the plaintiff’s admission that he realized he had the option to refuse to sign the form, but did not do so as he did not want to engage in the hassle of obtaining a refund.

The court granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiff’s cross-motion.

Martinez v. Stevens
U.S. District Court for the Southern District of New York
13 Civ. 1400 (RWS)
April 24, 2017

Federal Court Dismisses Claim Arising Out of Car Versus Truck Accident Based on New York’s Threshold Requirement and the Absence of Causation

This action, in which HRRV represented a trucking company and its driver, arose out of an accident between the aforementioned driver and the plaintiff, Jose Martinez, who was driving his automobile, although it involved a considerable discussion of a prior accident in which the plaintiff had been involved.

Martinez was a passenger in a car hit by another vehicle in 2008. He was treated for injuries on his back, neck and right shoulder, and eventually complained about constant pain and stiffness in his back, right leg and shoulder. There was also a concern that he was suffering from spinal dysfunction, right shoulder injury and bulging spinal discs.

In 2011, Martinez was involved in an accident with a truck driven by Ross J. Stevens and owned by the Martin-Brower Company, LCC. The impact between the vehicles, as described by both drivers was negligible. In conversations with police immediately following the accident, Martinez did not express that he was experiencing pain. Several days later, however, he sought medical treatment from a number of doctors and complained of back, neck, shoulder and hip pain. Examinations performed by his doctors exhibited complaints of pain and stiffness, but noted that Martinez was able to move without pain. X-rays taken soon thereafter did not reveal any fractures or dislocations of any of the bones or joints noted. MRIs taken soon thereafter showed some spinal disc bulges, and Martinez missed a few weeks of work and, within a few months, reported that he had returned to work full-time.

During the course of litigation, Martinez had been treated by doctors, complained of myriad of pains and had several surgeries performed, including a wrist surgery and a spinal fusion.

Defendants moved for summary judgment based on Article 51 of New York’s no-fault insurance law, which provides in pertinent part, that:

“[I]n any action by or on behalf of a covered person against another covered person for personal injuries arising out of the negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of serious injury, or for basic economic loss [exceeding $50,000].”

A “serious injury” is defined by statute, in relevant part, as:

A personal injury which results in . . . significant disfigurement . . . and permanent loss of use of a body organ, member, function or system; permanent consequential limitations of use of a body order or member; significant limitations of use of a body function or system; or 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 90 days during the 180 days immediately following the occurrence of the injury or impairment.

Whether a plaintiff has suffered a “serious injury” is a threshold question for the court to decide.

Judge Robert Sweet held that the defendants met their burden of establishing that plaintiff did not meet the statutory threshold, primarily based on the significant injuries alleged in connection with his 2008 accident and that the “[d]efendants’ submissions show that plaintiff exhibited the same injuries following his 2008 accident that he claims as a result of the 2011 accident.”

As such, the burden shifted to the plaintiff, who, Judge Sweet held, showed that he had suffered a significant limitation of use of a body function or system ,but, nevertheless, failed to establish the requisite causation between the accident and his current injuries. The court noted that “Plaintiff’s injuries are a result of either preexisting degenerative or 2008 accident injuries, and [that] Plaintiff’s submissions ‘failed to adequately address’ them, and therefore [fail] to support a finding of proximate cause for the 2011 accident.”

Carla Varriale, Lindsay R. Kaplow and Jaclyn SchianodiCola represented Ross J. Stevens and The Martin-Brower Company, LCC.

Valdez v. Diego Beekman Mutual Housing Association Housing Development Fund Corporation
Supreme Court, Bronx County
Index No. 309797/12
February 22, 2017

Summary Judgment Granted to Building Owner

Paintiff claimed that she was injured on October 5, 2011, when she tripped and fell descending an interior staircase in the defendant’s building. Specifically, the plaintiff cited loose, cracked and uneven tiles, and the absence of a handrail. In dismissing the case, Justice Julia I. Rodriguez granted the defendant’s motion for summary judgment dismissing all claims.

Justice Rodriquez ruled that the defendant met its burden of proof by showing that it maintained the building in a reasonably safe condition, did not create the condition and lacked notice of same. It was held that the plaintiff failed to present questions of fact about there being any dangerous condition in the area where she fell. The court also held that when the proper law was applied, the Tenement House Law of 1901, there was no requirement for the stairs at issue to have a handrail, nor had any evidence been put forth to show that any work has been done in the building to change the occupancy group classification for the building.

Tara C. Fappiano represented Diego Beekman Mutual Housing Association Housing Development Fund Corporation.

Silver Galore, Inc. v. New Generation Realty, LLC; All-Boro Tank Testing; Castle Oil Corporation; and S.J. Fuel Co., Inc.
Supreme Court, New York County
Index No. 650303/13
February 7, 2017

Oil Spill Remediation and Property Damage Case Dismissed Based on Plaintiff’s Failure to Move for Default Judgment Against Testing Company within One Year of Supposed Default

This action arose out of an oil spill that occurred shortly after an oil tank was refilled in the basement of premises in which the plaintiff rented space pursuant to lease with defendant New Generation Realty LLC, which owns the building. Defendant All-Boro Tank Testing was retained by New Generation to conduct remediation of the oil spill. Plaintiffs allege, inter alia, that the spill damaged its business, caused the loss of merchandise and exposed its employees to toxic and hazardous fumes causing injuries.

All-Boro failed to answer, move or otherwise respond to the complaint within the required time, although the plaintiff never moved for a default judgment. Several years later, the plaintiff filed a motion seeking to amend the complaint to add certain claims against the other defendants, all of which had answered, which motion was granted. Immediately thereafter, the plaintiff served an amended complaint in accordance with the court’s order.

All-Boro moved to dismiss the complaint and all cross-claims against it arguing that the plaintiff’s failure to move for a default judgment within one year of its default (the time required by statute), without any acceptable excuse, required dismissal of the case against it.

In addressing All-Boro’s motion, the court noted that the plaintiff offered no explanation for its failure to move for default within the year. Rather it argued that the amended complaint superseded the original complaint and that All-Boro’s failure to timely answer the amended complaint restarts the time for the plaintiff to move for default. The court held that this argument was without any legal or factual basis and said that, in fact, the amended complaint appeared to support a finding that plaintiff had abandoned its claims against All-Boro, based on the absence of any counts against All-Boro in the amended complaint, a point noted by All-Boro in its motion.

The court also dismissed cross-claims asserted by the other defendants against All-Boro, noting that the record was devoid of evidence to support these claims.

Carla Varriale and Shawn Schatzle represented All-Boro Tank Testing.

Ben-Hassann v. 16301 Jamaica Avenue LLC, Fabco Shoes and Jamaica Center Business Improvement District Inc. v. Academic Stone, Inc.
Supreme Court, Queens County
Index No. 15834/12
January 30, 2017

Contractor Held to Owe No Duty in Tort to the Plaintiff, Resulting in Summary Judgment

Plaintiff alleged that she fell on a broken and raised brick paver on the sidewalk of 163-01 Jamaica Avenue in Queens and suffered personal injuries. The premise is and the surrounding area were located within the Jamaica Center Mall, in which Fabco leased a store directly in front of where the plaintiff alleges to have fallen.

Prior to the plaintiff’s fall, Jamaica Center Business Improvement District Inc. (JCBID) had agreed to by contract with the City of New York to provide certain maintenance and repair services at the mall, including in respect to sidewalk paving. Also prior to the plaintiff’s fall JCBID entered into a contract with Academic Stone which required the latter to provide certain repair services to the sidewalks in issue.

All of the defendants and third-party defendants sought summary judgment on multiple bases. The branches of the motions which sought dismissal on the ground that the sidewalk defect was trivial were denied. The court noted that the defendant seeking dismissal of the complaint on the basis that the alleged defect is trivial is required to make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not somehow increase the risk it poses. Only after this showing does the burden shift to the plaintiff to establish the existence of an issue of fact. The court held that the defendants had not made a prima facie showing sufficient to shift the burden to the plaintiff.

Notwithstanding the denial of the trivial defect branch of the motions, Academic Stone’s motion was granted based upon a finding that it owed no duty in tort to the plaintiff. The court cited the New York Court of Appeals decision in Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 746 N.Y.S.3d 120, 773 N.E.2d 485 (2002) for the proposition that a contractual obligation, standing alone will generally not give rise to liability in favor of a third party. Noting the exceptions to this general rule (1) where the contracting party failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely, the court held that Academic Stone had established that it did not owe a duty of care to the plaintiff, since its limited maintenance contract with JCBID did not displace JCBID’s duty to maintain the sidewalk in a reasonably safe condition and it (Academic Stone) did not launch an instrument of harm.

Carla Varriale and Shawn Schatzle represented Academic Stone, Inc.

Bunting v. Frontseat, LLC and Twenty-Three Maple Avenue Realty, Inc. v. Incorporated Village of Rockville Centre, Rockville Centre Water Department and The Town of Hempstead
Supreme Court, Nassau County
Index No. 4957/15
January 19, 2017

Workers’ Compensation Law Bars Claims of Property Owners Where No Contractual Obligation Exists

The plaintiff, an employee of the Incorporated Village of Rockville Centre, was injured when he tripped and fell on a defective or unsecured water-meter vault cover outside of 23 Maple Avenue, Rockville Centre, New York, on February 23, 2015, during the course of his employment as an inspector for the Village of Rockville Centre. The plaintiff filed a Notice of Claim with the Village in April 2015. Subsequently, the plaintiff’s counsel was advised that the plaintiff’s claim was barred pursuant to, inter alia, New York Workers’ Compensation Law § 11. The plaintiff filed a lawsuit in Supreme Court, Nassau County against the property owners, Frontseat LLC and 23 Maple Avenue Realty, Inc., and thereafter, the owners brought a third-party action against the Incorporated Village of Rockville Centre and the Rockville Centre Water Department.

On behalf of the Village, HRRV moved for summary judgement arguing that the claims against the Village were barred by New York Workers’ Compensation Law § 11 as the plaintiff was employed by the Village at the time of the incident, he did not sustain a grave injury and the Village did not have any contractual obligation to indemnify the third-party plaintiffs. The third-party defendants opposed our motion arguing that a contractual obligation existed by reason on the Village’s statutory obligation to maintain its water meters and vaults. In addition, the third-party defendants argued that a contractual obligation exists as the Village contracts with the property owners in the Village, and therefore, there is an obligation to indemnify the owners for any damage sustained as a result of equipment owned by the Village.

Justice R. Bruce Cozzens agreed with our position and granted our motion in its entirety and the action was dismissed against the Village. Justice Cozzens held that the action was barred by the Workers’ Compensation Law § 11 in that the plaintiff did not sustain a “grave injury” nor was there a contract indemnifying the third-party plaintiffs. Therefore, the third-party complaint was dismissed in its entirety against the Village and the Rockville Centre Water Department.

Susan B. Boland represented Incorporated Village of Rockville Centre and Rockville Centre Water Department.

Haubenreisser v. Festival Fun Parks, LLC
Supreme Court, Nassau County
Index No. 601347/2016
January 17, 2017

Speculation as to the Cause of Accident Fatal to Plaintiff’s Negligence Claim

Alyssa Haubenreisser alleged that she sustained injuries to her right foot while she rode a hydro-magnetic water coaster known as “Bootleggers’ Run” at Splish Splash Water Park located in Calverton, New York (owned and operated by Festival Fun Parks, LLC). Plaintiff claimed that her right foot made contact with an object inside the flume of Bootleggers’ Run.

Throughout the entirety of the litigation, the plaintiff was unable to identify the cause of her injury without engaging in speculation and conjecture. At the time of her deposition, the plaintiff testified that she did not know what had caused her accident. Rather, the plaintiff testified that a number of various objects or conditions may have been the cause of her injury.

Based upon the plaintiff’s deposition testimony as well as the inspection records of Splish Splash and an affidavit from Splish Splash’s general manager, Festival moved for summary judgment. Festival argued that the plaintiff’s inability to identify the cause of her accident was fatal to her negligence cause of action because a finding that Festival’s negligence, if any, proximately caused her injuries would be based upon mere speculation. Festival asserted that mere speculation as to the cause of an accident, where there can be many causes, warrants summary judgment as a matter of law.

Festival also argued that no dangerous or defective condition existed inside the flume at Bootleggers’ Run, as the inspection records showed that on the morning of the plaintiff’s accident the flume was free from any rough/sharp edges and foreign objects. Furthermore, Festival argued that it did not owe a duty to the plaintiff and did not breach any purported duty.

In granting summary judgment to Festival, Nassau County Supreme Court Justice Robert Bruno agreed that the plaintiff’s inability to identify the cause of her injury without engaging in speculation was fatal to her negligence claim. Judge Bruno also concluded that, based upon the affidavit of Splish Splash’s general manager and the daily inspection records, Festival established that there was no defective or dangerous condition in Bootleggers’ Run nor did Festival create or have actual notice of any condition. Plaintiff failed to meet her burden in opposition.

Justice Bruno also denied the plaintiff’s cross-motion for summary judgment, which was based upon res ipsa loquitur, as academic. Although Justice Bruno did not discuss the denial of the plaintiff’s cross-motion at length, it was noted that the plaintiff’s evidence was insufficient to establish each of the requisite elements of res ipsa loquiturthe event was one that does not ordinarily occur in the absence of someone’s negligence; that it was caused by an agency or instrumentality within the exclusive control of defendant; and that it was not caused by any voluntary action or contribution on part of the plaintiff.

Carla Varriale and Jaclyn SchianodiCola represented Festival Fun Parks, LLC.

Hudson v. Leisure Time Sports, Inc.
Supreme Court, Kings County
Index No. 507712/2015
January 9, 2017

HRRV Wins Summary Judgment for Roller Skating Rink Based Upon Assumption of the Risk Doctrine

Randy Hudson alleged to have incurred personal injuries when he was bumped by another skater while participating in an open-rink skating session held at the defendant’s roller skating rink. Plaintiff attempted to hold the defendant liable based upon a theory of negligence, in failing to properly operate, control, maintain and otherwise supervise the premises.

Hudson testified that he had been regularly skating at open-rink skating sessions for years, but alleged that on the particular date in question some of the younger skaters were skating too fast and cutting in front of him, which caused his accident. The accident was captured on the video surveillance, which the plaintiff argued depicted that he was in fact bumped by another patron while skating. A representative of the defendant testified that it had two rink guards supervising the session at the time the plaintiff fell.

In support of its motion for summary judgment, the defendant argued that the plaintiff appreciated the risk that he could be bumped by another skater and fall while skating during an open-rink session. The court agreed that the defendant met its prima facie burden with evidence showing that it did not breach any duty of care owed to the plaintiff. The court held that the plaintiff, an experienced roller skater, voluntarily assumed the risk of participating in an activity where the risk of injury was a known, apparent and reasonably foreseeable consequence of his participation. Thus, since he was aware of the risk of open-rink skating, the plaintiff could not hold the defendant liable for his injuries. The case was dismissed in its entirety.

Steven H. Rosenfeld represented the defendant.

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