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HRRV in the Courtroom
2006 Archive

Bruns v. SFX Entertainment, Inc, et al.
Supreme Court, New York County Index No. 122064/2003
December 18, 2006

Licensee of state owned building building not a Labor Law “owner” of cell tower licensed to another entity

John Bruns alleged that he was injured on June 28, 2002, while working as a “climber” repairing a cellular phone tower on the outside of the Jones Beach Theatre as an employee of Island Mobile. As Mr. Bruns was rappelling (descending) to the ground he claims that the climbing equipment failed causing him to fall to the ground. He claimed that he sustained significant fractures to his lower extremities requiring surgery, suffers from Reflex Sympathetic Dystrophy and is permanently and totally disabled.

Plaintiff commenced suit against the licensee of the building housing the theatre(which is owned by the State of New York), referred to as the “Clear Channel defendants,” the licensee of the cell towers affixed to the building, Crown Communications, the cell company on whose tower plaintiff was working, Nextel Communications, and a cleaning company which plaintiff alleged was engaged in power washing in the vicinity of where he fell, Sparkling Clean. At the close of discovery, each party moved for summary judgment.

Plaintiff sought summary judgment against Crown and Nextel on his Labor Law claims. Most notably, plaintiff argued that “the sole proximate cause of [his] accident was the failure of the defendants to provide [him] with adequate and necessary safety equipment. Crown and Nextel, in opposition and in support of their own motions, argued that the Labor Law did not apply, primarily because the plaintiff was engaged in “routine maintenance” work and not “repair” work.

The Clear Channel defendants, who were represented by HRRV, argued that:

  1. none of them was an owner under the labor law (this is established by the separate contracts entered into by the state with Beach Concerts and Crown );
  2. none of them had control over the cell site;
  3. none of them had the right to impact access to the cell site;
  4. even if an owner, each of them would have a pass through to Crown and/or Nextel;
  5. none of them had any connection to the work being done or equipment failure (plaintiff had not proven equipment failure)
  6. scheduling/coordination as between Sparkling Clean and plaintiff’s employer is not an issue, since
    1. no power washing was going on at the time of plaintiff’s fall;
    2. even if power washing was being done, there was no proximate cause.

Nextel claimed that it played no active role in the plaintiff’s accident, had no supervisory control over plaintiff’s work and that plaintiff was engaged in “routine maintenance” rather than repair work, the latter of which is required to establish labor law liability. Nextel also argued that plaintiff was a recalcitrant worker and that his failure to follow the instructions of his supervisors was the sole proximate cause of his injury. Nextel submitted affidavit from plaintiff’s direct supervisor and a co-worker, both of whom stated that the supervisor instructed plaintiff not to rappel down the side of the theatre, and that plaintiff could have easily stepped up and over the wall after he completed his work.

Crown’s motion for summary judgment was based on the same theories as that of Nextel, although it did not argue the recalcitrant worker doctrine. It did, however, seek judgment on its cross-claims for contractual indemnification and breach of contract for failure to procure insurance.

Sparkling Clean argued the absence of authority to supervise or control plaintiff’s work (it was relatively clear that Sparkling Clean was not a viable Labor Law defendant) and the failure of proof.

Justice Rosalyn Richter dismissed the Labor Law 200 and common law negligence claims as against all defendants, focusing on the absence of actual supervision and control over the plaintiff's work. In this regard, the court noted that possessing general supervisory authority was insufficient to establish common law liability (Section 200 is merely a codification of common law negligence obligations.) The court also gave short shrift to the argument that the alleged power washing created a hazardous condition.

Most importantly, the court held that none of the Clear Channel defendants was not an "owner" as defined under the Labor Law, noting that none exercised any control or authority over the cell phone site - which the evidence shows the state had licensed directly to Crown.

In sum, the court dismissed all claims and cross-claims against the Clear Channel defendants and Sparkling Clean - and several of the claims against Nextel and Crown - leaving only the Labor Law 240(1) claims against those two entities. The court did, however, granted conditional indemnity on behalf of Crown against Nextel. Effectively, the case will proceed as a section 240(1) case against Nextel.

Steven H. Rosenfeld and Tara C. Fappiano represented the Clear Channel defendants.

Brookner v. New York Road Runners Club, Inc., New York Road Runners Foundation, Inc.
and The City of New York
Supreme Court, Kings County Index No. 2902-2006
December 18, 2006

Enforceability of release against New York Marathon participant

In Brookner v. New York Road Runners Club, Inc. New York Road Runners Foundation, Inc. and The City of New York, Justice Michael A. Ambrosio of the Supreme Court, Kings County, dismissed all claims against the defendants based on a release signed by the plaintiff, who claimed that he was injured while running in the 2004 New York City Marathon..

The defendants moved for to dismiss arguing that the plaintiff, as a participant of the marathon, signed a release and waiver, releasing the defendants from any and all liability arising out of his participation in the marathon. Plaintiff argued that the release and waiver was void under General Obligations Law § 5-326, which generally voids exculpatory agreements entered into in connection with the payment to an “owner or an operator “of a fee for admission to a “place of amusement and recreation.” The court held that section 5-326 was not applicable to the release signed by the plaintiff, since he did not pay to an “owner or operator” a fee for admission to a “place of public amusement.”

The court relied on Stuhlweissenburg v Town of Orangeburg et al., 223 A.D.2d 633, 636 N.Y.S.2d 853 (2d Dep’t 1996), wherein the plaintiff was injured when she slid into third base while playing softball at the Veterans Field in Orangeburg. The Town moved for dismissal based on plaintiff’s execution of a release. The Appellate Division, Second Department, in affirming the lower court’s decision, held that the plaintiff failed to submit evidence that that she paid a fee to the Town “for the admission to, or use of, [its] softball field.” The court also relied on Kapsch v. New York Road Runners Club, Index Number 10447/97 (Supreme Court, New York County, December 13, 1998) and Engelson v. Susan Komen Breast Cancer Foundation, Inc., et al, Index Number 121598/00 (Supreme Court, New York County, April 6, 2001), both of which held that the release signed by the plaintiff was not subject to General Obligations Law §5-326 since the plaintiff paid a fee to the defendant to participate in the marathon and not to Central Park.

Lastly on this point, the court noted that the legislative history of General Obligations Law §5-326 establishes that “it was a consumer protection measure based upon an assessment that members of the general public patronizing proprietary recreational and amusement facilities are commonly either entirely unaware of the existence of exculpatory clauses in admission tickets or membership applications or are unappreciative of the legal consequences thereof.” Owen v. R.J.S. Safety Equipment, Inc., 169 A.D.2d 150, 156, 572 N.Y.S.2d 390 (3d Dep’t 1991) citing Governor’s Bill Jacket L 1976, ch 414, § 1.

Plaintiff further argued that the waiver and release was unenforceable because defendants’ conduct rose to a level of gross negligence since the Road Runners Club allowed a record number of runners to enter the marathon, creating a hazardous and dangerous crowding condition. The court rejected this argument as well finding that plaintiff’s allegations did not rise to the level of gross negligence.

Steven H. Rosenfeld represented the defendants.

Peter DiMarinis v. Sterling Mets, L.P. d/b/a New York Mets and Robert Thompson
Supreme Court, Nassau County Index No. 7503/05
831 N.Y.S.2d 358, 12 Misc.3d 1243A
December 1, 2006
13 Misc. 3d 1243A; 831 N.Y.S.2d 358

Dismissal of suit against New York Mets and security supervisor alleging false arrest, malicious prosecution and abuse of process

Judge Thomas Phelan, sitting in Supreme Court, Nassau County dismissed a lawsuit commenced by a patron who allegedly participated in a melee whereby a security supervisor employed by Sterling Mets, L.P. was struck in the head with a bottle and allegedly misidentified the patron as the individual who threw the bottle.

Peter DiMarinis commenced a lawsuit against Sterling Mets, L.P. d/b/a New York Mets and Robert Thompson, arising out of an altercation occurring at Shea Stadium on May 26, 2004. The plaintiff alleged that he observed an altercation between a group of fans and several of Sterling Mets’ security guards, including defendant Robert Thompson. The plaintiff further alleged that after leaving Shea Stadium that night, Mr. Thompson accosted and physically detained him and identified him to police officers as one of the patrons who assaulted Mr. Thompson while knowing that the identification was false. The identification lead to the plaintiff’s arrest and charges of felony assault in the second degree, however, on July 28, 2004 the charges against the plaintiff were adjourned in contemplation of dismissal. The plaintiff’s verified complaint asserted causes of action for false imprisonment, malicious prosecution, abuse of process and battery. Early in the litigation, the plaintiff voluntarily discontinued his battery cause of action.

Evidence demonstrated that: (1) the criminal action against the plaintiff resulted in an adjournment in contemplation of dismissal; (2) neither Sterling Mets nor Mr. Thompson commenced a civil or criminal proceeding against the plaintiff but rather simply cooperated with law enforcement; (3) neither Sterling Mets nor Mr. Thompson detained or arrested the plaintiff; and (4) neither Sterling Mets nor Mr. Thompson played an active role in the plaintiff’s arrest, rather, Mr. Thompson only provided information to the police.

Sterling Mets and Robert Thompson moved for summary judgment to dismiss the plaintiff’s verified complaint in its entirety. In opposition to defendants’ motion, the plaintiff made an unsubstantiated contention that Mr. Thompson’s identification was done “in bad faith” to purposefully misidentify the plaintiff because he took photographs of the altercation. The court granted defendants’ motion and dismissed all causes of action against Sterling Mets and Robert Thompson.

With regard to the plaintiff’s false imprisonment cause of action, the court held that there is no liability for only giving information to legal authorities who are left to use their own judgment whether an arrest should be made or criminal charges filed, citing to Chapo v. Premier Liquor Corp., 259 A.D.2d 1050, 688 N.Y.S.2d 342 (4th Dep’t 1999). Further, “[a] plaintiff must demonstrate that the defendant ‘played an active role in the prosecution, such as giving advise and encouragement or importuning the authorities to act.’” Du Chateau v. Metro-North Commuter Railroad Co., 253 A.D.2d 128, 688 N.Y.S.2d 12 (1st Dep’t 1999). The court concluded that the evidence did not reflect any such active encouragement or importune by Sterling Mets or Robert Thompson to foster the plaintiff’s arrest or imprisonment by the police.

The court dismissed the plaintiff’s malicious prosecution cause of action because, among other things, in order to succeed on a malicious prosecution cause of action, the plaintiff must prove termination of the criminal proceeding in favor of the accused. In this case, the criminal proceeding against the plaintiff was adjourned in contemplation of dismissal and then dismissed. The court stated that “[t]ermination in favor of the accused is only satisfied when the case has been disposed of on the merits finding the accused innocent,” citing to Hollender v. Trump Village Cooperative, Inc., 58 N.Y.2d 420, 461 N.Y.S.2d 765 (1983). Here, the court correctly stated that “[a]n adjournment in contemplation of dismissal is not the equivalent of a finding of innocence, and thus, it does not support a cause of action for malicious prosecution.” Champagne v. Shop Rite Supermarkets, 203 A.D.2d 410, 610 N.Y.S.2d 559 (2d Dep’t 1994).

Finally, the court held that the plaintiff’s abuse of process cause of action must be dismissed because by solely reporting a crime to police and giving testimony by Sterling Mets and/or Robert Thompson was not sufficient because they did not issue process nor use process “in a perverted manner to obtain a collateral objective.” Chapo v. Premier Liquor Corp., 259 A.D.2d 1050, 688 N.Y.S.2d 342 (4th Dep’t 1999), quoting Curiano v. Suozzi, 63 N.Y.2d 113, 480 N.Y.S.2d 466 (1984).

Carla Varriale represented Sterling Mets, L.P. and Robert Thompson.

Israel v. Springs Industries, Inc. and Dundee Mills, Inc.
United States District Court – Eastern District of New York – 98 CV 5106 (ENV/RML)
November 24, 2006

Exclusion of scientific testimony

Magistrate Judge Robert Levy, sitting in the Eastern District of New York, has delivered a significant legal victory to a major textile manufacturing company, excluding a significant portion of the scientific testimony being presented by the plaintiffs in a products liability case against the corporation.

The defendants Springs Industries, Inc. and Dundee Mills, Inc. were sued by a boy and his family, who alleged that an incorrect label on a set of sheets severely exacerbated the child’s skin condition and allergy and led to severe medical problems for the boy.

To support their case, the plaintiffs retained three testifying experts. HRRV, representing the defendants, moved to exclude the experts’ testimony, and the motion was granted almost in its entirety.

Tara C. Fappiano and represented the defendants.

Magistrate Judge Levy held that the life care plan authored by the plaintiffs’ expert physiatrist was inadmissible since it was based on unreliable information. The plaintiffs’ expert economist had projected the damages for lost earnings and future costs of care to exceed $20 million. However, given the exclusion of the life care plan, the proffered economist had no basis upon which to calculate those damages. The testimony of the plaintiffs’ psychological expert was also excluded as to the issue of causation.

“This decision supported what we have been telling our client all along, that the scientific testimony presented by plaintiffs counsel was built on a house of cards,” Fappiano said. “We commend the court for taking a critical look at the scientific testimony being offered by the plaintiffs.”

Fappiano added that she hoped the decision would encourage more manufacturers and their insurers to stand up to frivolous lawsuits and not settle out of court prematurely.

“We have seen this happen time and time again, where our clients are able to successfully defend themselves against litigation that rests on unsubstantiated expert opinions,” Fappiano said.

Kasper v. The City of New York and Century Road Club Association
Supreme Court, Kings County Index No. 27380/2005
October 24, 2006

Enforceability of release against bicycle race participant

In Kasper v. The City of New York and Century Road Club Association, Justice Martin Solomon of the Supreme Court, Kings County, granted the motion for summary of judgment of defendant Century Road Club Association (“CRCA”), dismissing all claims against it, based on a release signed by plaintiff, who alleged to have been injured while participating in a bicycle instructional race sponsored by CRCA.

Plaintiff alleged that while participating in the bicycle race, he was caused to be injured when his bicycle struck a ditch in the roadway within Central Park. Prior to participating in this event, the plaintiff signed a USA Cycling, Inc. release and waiver, releasing the defendant CRCA from any and all liability arising out of his participation in the race. USA Cycling was not named as a defendant.

CRCA moved for summary judgment arguing that the plaintiff was precluded from commencing an action since he signed a release and waiver prior to participating in the event. In opposition, plaintiff argued that the release and waiver was void under General Obligations Law § 5-326, which generally voids exculpatory agreements entered into in connection with the payment to an “owner or an operator “ of a fee for admission to a “place of amusement and recreation.” The plaintiff further argued that he never released CRCA from liability since it was never specifically referenced in the release.

The court, in dismissing the action, held that the release was clear and expressed in unequivocal language the intent to relieve USA Cycling, Inc and its affiliates of all liability for personal injuries arising from its negligence. The Court further held that CRCA was in fact covered under the release since it is an affiliate of USA Cycling, Inc and affiliates are specifically referenced within the release.

Steven H. Rosenfeld represented the Century Road Club Association.

Venduras v. Reebok Sports Club
Supreme Court, New York County – Index No. 10460/05
July 18, 2006

Enforceability of release against health club guest

In Venduras v. Reebok Sports Club, Justice Marcy Friedman of the Supreme Court, New York County, dismissed all claims against the Reebok Sports Club. Plaintiff, as a condition of obtaining guest status at the health club, signed a release and waiver in which he released the defendant from any and all liability arising out of the plaintiff’s use of the facility. The plaintiff claims that he slipped and fell on a wet substance at the club.

The defendant moved for summary judgment arguing that the plaintiff was precluded from commencing an action since he signed a release prior to entering the facility. In opposition, plaintiff argued that General Obligations Law §5-326 rendered the release void as against public policy and that defendant failed to properly authenticate the signature on the release.

In granting defendant’s motion for summary judgment, the court found that General Obligations Law §5-326 did not apply since the plaintiff did not a pay fee to use the facility. (Citing Chieco v. Paramarketing, Inc. 228 A.D.2d 462 (2d Dep’t 1996); Stuhlwessenbrug v. Town of Orangetown, 223 A.D.2d 633 (2d Dep’t 1996)). The court also held that the plaintiff's attorney's affirmation, which challenged the authenticity of the plaintiff's signature, was not "based on personal knowledge of the facts [and] it is without probative value" (citing Zuckerman v. City of New York 49 N.Y.2d 557, 564 (1980)).

Steven H. Rosenfeld and represented the defendant.

Angellilo v. Splish Splash
Supreme Court, Nassau County – Index No. 8007/04
June 20, 2006

Plaintiff unable to establish defect

In Angellilo v. Splish Splash, plaintiff alleged that as she was leaning against a fence surrounding the "Unfaithful" geyser attraction located at the Splish Splash Water Park, another patron "of substantial age" sat on the fence, causing it to collapse and the plaintiff to fall to the rocks below, sustaining injury to her shoulder, neck and back.

The plaintiff alleged that Splish Splash was negligent in the maintenance of the fence surrounding this attraction. Based upon the testimony of Robert Amoruso of Splish Splash, the park was not aware of any problems with the fence and Splish Splash staff were instructed to make sure patrons did not sit, stand or lean on fences. Splish Splash argued that it lacked the requisite notice, as no complaints had ever been made regarding the fence surrounding "Unfaithful". Further, we argued that the unidentified patron sitting on the fence was an intervening, superseding cause of the plaintiff's accident.

Plaintiff attempted to argue that there were defects in the fence which caused it to break. She attempted to obtain records for all wood purchased for Splish Splash over a seven year period; a request which the court deemed to be broad and excessive.

Justice Daniel Martin of the Supreme Court, Nassau County held that plaintiff failed to meet her burden of introducing a question of fact, denied the plaintiff's prayer for further relief (for non-party depositions) and dismissed the case.

Carla Varriale represented Splish Splash.

Alois v. Engel Construction, et al.
Supreme Court, Nassau County – Index No. 4770/2002
June 19, 2006

Contractor did not contribute to circumstances of plaintiff’s injury

In Alois v. Engel Construction et al., the court granted summary judgment dismissing the third-party complaint against D'Aprile, Inc, a masonry subcontractor hired to perform work at a construction site in East Meadow, New York. In that case, the plaintiff, a laborer working for subcontractor Atlas Concrete, was injured when he slipped and fell on construction debris on a temporary ramp at the front entrance to a building under construction. The plaintiff filed suit against the owner of the location and the general contractor hired to perform construction thereat. Thereafter, the general contractor, Engel Construction, commenced a third-party action against multiple subcontractors at the project, including D'Aprile.

The third-party action by Engel Construction against D'Aprile was dismissed on the grounds that D'Aprile was not performing work at the location on the date of the occurrence, had not been working anywhere near the area of the incident and could not have created or contributed to the construction debris that allegedly caused the plaintiff's occurrence.

Cycan v. Bullitts Inc.
Supreme Court, Nassau County Index No. 10641/04
May 11, 2006

Tenant owed no duty relative to snow removal

In Cycan v. Bullitts, Inc., et. al., plaintiff alleged that she slipped and fell on an icy condition in a parking lot, owned by defendant Port High Properties LLC. Defendant Salerno Bros. had an oral contract with Port High Properties LLC for the removal of snow from the parking lot. Defendant Bullitts, Inc. was a tenant at the subject premises.

The plaintiff testified that the incident occurred in the parking lot of the premises. Based upon the testimony of Joseph Canigiani of Port High Properties LLC, the responsibility of maintaining the parking lot, including snow removal was that of the landowner, Joseph Canigiani and Port High Properties LLC. As stated in a lease between Bullitts, Inc. and Port High Properties LLC., the only responsibility of Bullitts, Inc. was to shovel the sidewalk abutting the property. Bullitts, Inc. argued that it did not owe a duty of care to the plaintiff. In the alternative, the plaintiff argued that employees of Bullitts, Inc. negligently deposited snow from its sidewalk into the common parking lot.

The court held that it was clear that the landlord alone took responsibility for maintaining the common parking lot by hiring a plowing company. Therefore, Port High Properties LLC, not Bullitts, Inc., owed a duty of care to the plaintiff. The court also stated that the plaintiff failed to offer supporting evidence that employees of Bullitts Inc. negligently placed snow in the parking lot.

Bernhardt v. Morgan Contracting Company Supreme Court, New York County – Index No. 108876/2003
May 5, 2006

Absence of proof of contractor’s responsibility for defect

In Bernhardt v. The Morgan Contracting Company, the plaintiff claimed that she was walking on the sidewalk of the side entrance to the Medical Arts Pavilion at Staten Island University Hospital when she fell on an uneven portion of sidewalk. She brought an action against The Morgan Contracting Company alleging that the sidewalk had been negligently constructed.

In support of its motion for summary judgment, the defendant submitted evidence establishing that it was neither responsible for nor performed any work at the Medical Arts Pavilion or the sidewalks around the building, even though it had done work elsewhere at the hospital. Justice Marilyn Diamond stated that the plaintiff failed to submit any proof to support her claim that the defendant was in any way responsible for the condition of the sidewalk where she allegedly fell and, therefore, granted the defendant’s motion.

Tara C. Fappiano represented The Morgan Contracting Company.

Scandale v. Bullwinkle's Family Food and Fun, LLC
Supreme Court, Suffolk County – Index No. 11142103
January 3, 2006

Plaintiff fails to demonstrate duty in slip and fall claim

In Scandale v. Bullwinkle's Family Food and Fun, LLC, plaintiff alleged that she slipped and fell on a "mushy hot dog bun" in the restaurant located at Bullwinkle's.

Plaintiff testified that she had been waiting for the table for over forty minutes before sitting down with her friends and their children. They had been seated for forty-five minute when the plaintiff attempted to exit the booth and slipped on a hot dog bun underneath the bench. The only responsibility the park had was to keep the restaurant and booth clear of debris. Due to the fact that the plaintiff had been seated in the both for a significant period of time, the porters were unable to clear debris from the booth where the plaintiff was seated. Further, plaintiff failed to demonstrate that the alleged hot dog bun was not from her meal. Therefore, we argued that Bullwinkle's had no notice of the allegedly dangerous condition and that plaintiff had failed to introduce evidence showing that said condition existed for a sufficient length of time such that Bullwinkle's employees were or should have been aware of it.

The Supreme Court, Suffolk County held that plaintiff failed to demonstrate that Bullwinkle's owed a duty to plaintiff and that the hot dog bun had been under the both for such a length of time that Bullwinkle's employees should have cleared it. The court also stated that the plaintiff failed to offer supporting evidence that Bullwinkle's employees were negligent and that the evidence she provided was not sufficient to defeat a motion for summary judgment.

Carla Varriale represented Bullwinkle's Family Food and Fun, LLC.

Prior results do not guarantee a similar outcome

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