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HRRV in the Courtroom 2017

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, Amol N. Christian 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
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.

Danit L. Sibsovits represented Trama’s Auto School, Inc.

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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