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HRRV in the Courtroom
2005 Archive

Fishman v. Westminster House Owners, Inc., et al.
Appellate Division, First Department – 103274/2002
December 29, 2005
24 A.D.3d 394; 806 N.Y.S.2d 550 ;

Plaintiff’s failure to establish causation

In Fishman v. Westminster House Owners, Inc., et al., the Supreme Court, New York County granted summary judgment dismissing the complaint against all defendants, including Chelnik Parking and CAM Garage, represented by HRRV. The plaintiff claimed to have slipped and fallen on a wet ramp leading to a parking garage. The plaintiff could not, however, recall any slippery or wet condition as he walked on the ramp; nor could he specify what caused him to slip and fall. The plaintiff's testimony that he observed water being sprayed from a hose and wet tire tracks on the ramp one hour before the incident did not permit a reasonable inference that water was present when and on the part of the ramp where he fell. Accordingly, the plaintiff's complaint was dismissed for failure to establish a prima facie case of negligence.

The Appellate Division, First Department unanimously affirmed the dismissal, noting that the defendants were entitled to judgment as a matter of law.

Garcia v. Northcrest Apartments
Appellate Division, First Department – Index No. 24766/02
December 13, 2005
24 A.D.3d 208; 806 N.Y.S.2d

Police Officer assumes risk that fence he attempts to climb will collapse

In Garcia v. Northcrest Apartments, the Supreme Court, Bronx County granted summary judgment dismissing the complaint against all defendants, including Northcrest Apartment, represented by HRRV. The plaintiff, a New York City police officer, was injured while pursuing a suspec t on land allegedly owned or operated by the defendants. The complaint was dismissed on the grounds that it was not foreseeable that a police officer would scale a 10 foot high wall and a 10 foot high fence, situated on the wall, while in pursuit of a suspect. The plaintiff appealed the decision.

The Appellate Division, First Department affirmed the dismissal, finding as a matter of law “that defendants could not reasonably foresee that plaintiff would scale a barrier measuring 20 feet high, apply his substantial weight to a pole, and injure himself in the process” Garcia v. Northcrest Apartments, 2005 NY Slip Op 09441 (1st Dep’t 2005); citing Addolorato v Safeguard Chem., 177 AD2d 680 (1991). Finally, the court also held that plaintiff’s argument that the pole was rusted, without more, was insufficient to establish constructive notice of the alleged defect.

Bernardo Diaz v. The City of New York, The City of New York Department of Parks and Recreation and Sterling Mets, L.P.
Supreme Court, Queens County – Index No. 18937/03
October 28, 2005

Assumption of risk bars claim of spectator at baseball game

In Bernardo Diaz v. The City of New York, The City of New York Department of Parks and Recreation and Sterling Mets, L.P., the claims of a spectator at a New York Mets baseball game were dismissed based on the plaintiff's assumption of risk and the lack of actual or constructive notice of any dangerous condition.

The plaintiff Bernardo Diaz commenced an action against the City of New York, the City of New York Department of Parks and Recreation and Sterling Mets, L.P. He alleged that while attending the Mets game at Shea Stadium ("the Stadium") on March 31, 2003, he tripped and/or slipped and fell due to a wet, watery and/or oily substance on a walkway within the Stadium, sustaining personal injuries. At his deposition, the plaintiff testified that he was injured when he jumped for a t-shirt that was shot into the stands during a promotional event at the Stadium and slipped on "something" wet.

The defendants moved for summary judgment arguing that the plaintiff assumed a known or obvious risk which negated any duty of care. The court agreed with the defendants that the plaintiff had, in fact, assumed the risk. The court held that a voluntary participant in a sport or recreational activity consents to all risks which are inherent in and arise out of the nature of the sport and that "[t]he recreational activities encompassed by the doctrine of assumption of the risk include games as well as frolic." The court held that the plaintiff voluntarily sat in an unprotected area, engaged in the promotional event and therefore assumed the risk of being injured while attempting to catch the t-shirt projected into the stands. The court also agreed with the defendants' arguments that they demonstrated that they did not create or cause the alleged dangerous condition and did not have any actual or constructive notice of it.

The court was not persuaded by the plaintiff's assertion that there was a triable issue of fact with regard to whether the defendants were on notice of the wet condition on which the plaintiff slipped after he jumped; and stated that a general awareness of spilled drinks in the Stadium was insufficient to establish constructive notice.

Carla Varriale represented the defendants.

Dynamic Painting Corporation and Romano Enterprises of New York, Inc. v. Leighton Associates, Inc.,
Supreme Court, Nassau County – 9849/2000
October 24, 2005

Court dismisses claims against environmental consultant due to lack of duty to protect workers on job site

Plaintiff Itelmar Faria brought a claim for negligence against a the general contractor on a renovation project on the Castleton-On-Hudson Bridge in Albany, New York, alleging that he suffered from lead poisoning following exposure to lead during his four months working on the project (Index No. 4895/2004). The general contractor advanced claims against Leighton Associates, Inc. for contribution and indemnification. Leighton had been engaged by the general contractor to perform environmental consulting on the job with respect to lead hazards that can arise from the type of work being performed. Specifically, the general contractor alleged that Leighton had failed to provide clothing and equipment or monitor "to lessen, regulate, and/or control the release or dissemination of air contaminants as alleged by Itelmar L. Faria and . . . keep them at the lowest possible level." At the conclusion of discovery, Leighton moved for summary judgment.

Justice Robert Roberto of the Supreme Court, Nassau County, granted Leighton's summary judgment motion. Procedurally, Justice Roberto held that it was not premature to grant the motion, even though the claims against Leighton were for contribution and indemnification and no judgment had been rendered against the general contractor. To deny the motion on those grounds "would mean a wholly innocent third-party defendant would be barred from trying to extricate itself from a case on summary judgment simply because it has not been sued directly by the main plaintiff - who may have declined to do so because no good-faith claim against such party exists." Leighton was not sued directly by the plaintiff Faria.

Turning to the merits, Justice Roberto went on to consider the evidence before him, including the Lead Health and Safety Plan ("the Plan") prepared by Leighton. The contents of the the Plan were expressly adopted by the general contractor, even though it was not a contract. Justice Roberto further determined that Leighton made a prima facie showing that it was entitled to judgment as a matter of law, including that the Plan defined its duties and that Leighton was not negligent in the performance of those duties and had no authority to direct, supervise, or control the work giving rise to the alleged injury.

Justice Roberto further held that the general contractor did not offer any evidence to show that Leighton was negligent in the performance of its duties or had any specific responsibilities above and beyond what was outlined in the Plan. Further, the general contractor offered no evidence that Leighton had the direct power to control, discipline, or remove Faria or any other worker from the job for failing to follow the Plan or adhere to Leighton's directions. Finally, Justice Roberto stated that even if the Court agreed with the general contractor that there was an issue of fact as to whether Leighton could "stop the job" for safety reasons, that authority would not have given rise to a duty to protect workers in Faria's position. "Supervision of worker health and safety does not amount to supervision and control of the work site such that liability can be imposed." Therefore, the Court dismissed all claims against Leighton.

Leighton Associates, Inc. was represented by Tara C. Fappiano.

Jarrod Davis v. Brooklyn Baseball Company, L.L.C., Sterling Equities, Inc. and Sterling Mets, L.P. d/b/a New York Mets
Supreme Court, New York County
March 2005

Claim of aspiring baseball player trying out for the New York Mets dismissed based on the execution of a general release and waiver.

Jarrod Davis commenced a personal injury lawsuit in New York State Court against the Brooklyn Baseball Company, L.L.C. and Sterling Mets, L.P., arising from injuries allegedly sustained on August 3, 2001 at Keyspan Park while attending an open call tryout for the Mets baseball team. The plaintiff alleged that while attending an "open try-out" and "while participating in a throw and catch session alongside more than two hundred (200) 'try-out' invitees . . . [he] was forcefully struck about the head with a hardball." As a result, the plaintiff allegedly sustained a linear parietal skull fracture, blunt head trauma, as well as headaches and reduction in the range of motion of his head and neck.
However, before participating at the tryout, the plaintiff had signed a general release and waiver, containing the following language:

"[I]n consideration of receiving permission to participate in the workout or tryout, I hereby agree, on behalf of myself and my heirs, legatees, distributes . . . to waive any and all rights regarding, and to release and hold harmless and indemnify the New York Mets, Sterling Doubleday Enterprises, L.P., their respective directors, offices, officials, employees and agents . . . from and against, any and all claims, actions, proceedings, liabilities, damages and expenses related directly and indirectly to personal injury . . . caused or incurred by me related in any way to my participation as herein described."

Based on the language contained in the general release, which the court held to be explicit and comprehensive, the court dismissed all claims against the defendants, holding that the general release was unambiguous and thus the plaintiff waived any rights of recovery for personal injury in connection with the open tryout at Keyspan Park. The court noted that "[a] release is enforceable in the absence of fraud, duress, illegality or mutual mistake," factors that were not argued by the plaintiff.

The court was not persuaded by the plaintiff's assertion that although Mr. Davis signed the general release, there was an issue of fact concerning whether the plaintiff comprehended the nature of the risk when he entered into the agreement. The court stated that since a release cannot be treated lightly and that having subscribed the document, the plaintiff cannot be said to have misunderstood its terms. The court also did not find the plaintiff's argument that the general release was not a bar to his causes of action based on the defendants' grossly negligent acts persuasive, concluding that the plaintiff did not make any claims for gross negligence in his verified complaint.

Carla Varriale represented the defendants.

Prior results do not guarantee a similar outcome

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