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HRRV in the Courtroom 2015

Barnes v. Emil Mosbacher Real Estate, LLC
Supreme Court, Bronx County
Index No.: 3015746/12
December 21, 2015

Out of Possession Landlord Granted Summary Judgment as Against Plaintiff and Indemnification as Against Tenant

Plaintiff claimed that he was injured when she tripped and fell on a loose metal strip being used as a door saddle into the entranceway of a retail space. Justice Rodriguez, Supreme Court, Bronx County, held that the building owner (represented by HRRV)  established  its prima facie entitlement to summary judgment by successfully showing that, as an out of possession landlord, it did not control the property, create the alleged condition or  have actual or constructive notice of any defect. Plaintiff failed to put forth any evidence of notice to the building owner, even though there was testimony that someone else had tripped on the saddle previously. There was also testimony that it was the tenant's responsibility to maintain the area question.

All claims were dismissed against our the building owner, Which was also granted common-law and contractual indemnification as against the tenant.

Tara C. Fappiano represented  Emil Mosbacher Real Estate, LLC and Mosbacher Properties Group, LLC.

Alessio v. Amsterdam 78, LLC
Supreme Court, Bronx County
Index No.: 03022/09
December 10, 2015

Labor Law Claims Dismissed Because of Lack of Evidence

Plaintiff claimed that he was injured when he stepped into an uncovered hole in a cement floor of a residential building that was under construction. Plaintiff filed Labor Law claims against the owner and general contractor. In turn, through various third-party actions, additional contractors were brought into the case, including the plaintiff’s employer and HRRV’s client, Sanco Mechanical, a sub-sub contractor. All parties filed motions for summary judgment. Justice Howard Sherman, sitting in Bronx County, granted all of those motions and dismissed all of the plaintiff’s and the various third-party claims.

Sanco had been brought into the action by Admore Air Conditioning (also a sub-contractor). Admore successfully demonstrated that it did not precipitate the incident by leaving the subject hole uncovered. Justice Sherman found that the general contractor. and owner did not come forward with any evidence that Admore did create the hole, or that it assumed any duty to inspect for or ensure that the hole was properly covered, or that it removed or improperly placed any type of covering over that hole. In light of that finding with regard to Admore, Justice Sherman ruled that Admore’s sub-contractors were also entitled to summary judgment. It was also held that there was no material evidence that Sanco was responsible for creating or otherwise altering the opening or the covering over it. Further, there was no basis for a breach of contract claim in that Sanco was working pursuant to a purchase order devoid of any language that required indemnity, the procurement of insurance, or the providing of a defense.

Tara C. Fappiano represented Sanco Mechanical.

O’Toole v. Long Island Junior Soccer League, Inc.
Supreme Court, Suffolk County
Index No.: 20112/12
October 22, 2015

Youth Soccer Player's Claim Dismissed Based on Assumption of Risk

In an action commenced on behalf of a youth soccer player against Long Island Junior Soccer League, Inc., Eastern New York Youth Soccer Association, Inc., Albertson Soccer Club, Dix Hills Soccer Club, and Roslyn Union Free School District, the defendants’ motion for summary judgment was recently granted by Justice James Hudson of the Supreme Court, Suffolk County. The infant plaintiff was allegedly injured at the Roslyn High School Athletic Field in Roslyn Heights, New York, while participating in a sanctioned soccer game through the Long Island Junior Soccer League. The infant plaintiff’s soccer cleat allegedly became stuck in a metal drainage grate along the perimeter of the soccer field.

In support of their motion for summary judgment, defendants argued that the infant plaintiff’s assumption of the inherent, obvious risk of playing soccer, notwithstanding his awareness of the purported obvious condition on the perimeter of the soccer field, negated defendants’ putative duty of care. Additionally, defendants argued that there was no actionable inherently dangerous or defective condition at the subject premises giving rise to the alleged accident, as the drainage grate was both open and obvious and defendants had no duty to warn of same.

The Court noted that “as a general rule, sport participants are held to have consented, by their participation, to the injury-causing events which are known, apparent, or reasonably foreseeable from their participation.” Justice Hudson concluded that defendants demonstrated their prima facie entitled to judgment as a matter of law by establishing that the infant plaintiff assumed the risk of injury by voluntarily participating in the soccer game, despite knowledge that he could come into contact with the open and obvious drainage grate. The drainage grate was found to be visible to anyone walking onto the field as nothing was covering or concealing it. The infant plaintiff’s testimony that he failed to notice the grate was not dispositive in light of his testimony that he had to step over it to get onto the field.

Further, the court found that plaintiffs’ expert’s affidavit was insufficient to defeat defendants’ motion, as it was speculative, conclusory, and failed to identify the violation of any specific safety standard which was applicable to the athletic field.

Carla Varriale and Lindsay Kaplow represented Long Island Junior Soccer League, Inc., Eastern New York Youth Soccer Association, Inc., Albertson Soccer Club, Dix Hills Soccer Club, and Roslyn Union Free School District

Wexelbaum v. Curbside Hospitality
Supreme Court, Nassau County
Index No. 600636/2013
October 14, 2015

Summary Judgment Granted to Valet Parking Company Based on Plaintiff’s Disregard of Open and Obvious Descending Parking Lot Gate Arm

Debra Wexelbaum alleged that on March 10, 2012 she sustained a head injury and concussion, ultimately resulting in a traumatic brain injury, after being struck by a descending parking lot gate arm while leaving Winthrop University Hospital in Mineola, New York.  Curbside Hospitality provided valet parking services to the hospital, including employing the attendant that operated the automatic parking gate arm. 

Photographs exchanged during the discovery phase of the action revealed that the automatic parking gate arm was painted bright red and white and that the arm also had a bright yellow sleeve, which read “Not a Walkway” in bold red lettering.  Additionally, the curb in the area of the automatic parking gate arm was painted bright red, further signifying of the dangers of the descending parking gate arm to pedestrians.

The plaintiff testified that as she approached the area of the parking gate arm, she stopped on the sidewalk to allow a vehicle to enter the restricted parking lot, which required the automatic gate to elevate.  Immediately after the vehicle passed and while the gate was still elevated, the plaintiff alighted from the sidewalk and proceeded into the area where the gate descends.

Further testimony elicited from the plaintiff confirmed her familiarity with the parking gate arm as the plaintiff had visited her mother at the hospital frequently and the plaintiff admitted to parking in the restricted lot, controlled by the automatic parking gate arm, over ten times prior to the date of the alleged incident. 

Using the plaintiff’s unequivocal testimony that she chose to proceed through the area where the gate descended after a vehicle had just passed coupled with her testimony that  she was familiar with the automatic parking gate arm, Curbside Hospitality moved for summary judgment.  As part of the motion photographs, which plaintiff conceded fairly and accurately depicted the area of the parking gate arm and clearly showed the numerous warnings pedestrians had concerning the descending gate, were submitted in support of the motion.   

Curbside Hospitality we argued that summary judgment was warranted given the “open and obvious” nature of the parking gate arm, and that the plaintiff was the sole proximate cause of the incident as she alighted from the safety of the sidewalk when only seconds prior she had observed the parking gate elevate.  Furthermore, it was argued that Curbside Hospitality did not owe a duty of care to the plaintiff

In granting summary judgment to Curbside Hospitality, Nassau County Supreme Court Justice Roy Mahon found Curbside Hospitality established its entitlement to summary judgment as the automatic parking gate arm was readily observable and that the plaintiff choose to proceed after the gate was raised and the vehicle passed.  The Court further expressly held that Curbside Hospital did not owe the plaintiff a duty of care. 

Despite the significant allegations of a traumatic brain injury, plaintiff’s counsel did not appeal the Order. 

Gail L. Ritzert represented Curbside Hospitality.

Leon v. Sferka Realty Corp.
Supreme Court, Bronx County.
Index No. 308719/2010
September 24, 2015

Plaintiff’s Lack of Credibility Results in Summary Judgment for Building Owner

Plaintiff Edwin Leon claimed he had been injured when he fell down an elevator shaft. After intensive discovery, it became clear to that the entire incident was fabricated. Justice Sharon A.M. Aarons granted the motion, dismissed all claims and ordered the plaintiff to pay costs and fees to the defendant.

On behalf of the defendant, HRRV submitted the following evidence: deposition testimony of the defendant denying any information about an accident; deposition testimony of two non-party police officers and the responding EMT, who confirmed there was no record of an accident and that when the EMT responded to the building he could not locate anyone who had fallen into a shaft; certified 911 call records which showed the call had been placed from a number and location four blocks west and one block south of the building; and telephone records obtained through subpoena that showed numerous calls between the 911 caller and the plaintiff around the time of the accident (even though plaintiff denied knowing who placed the 911 call).

Justice Aarons held that while credibility determinations are generally ones to be submitted to the trier of fact, that is not the case when the testimony is physically impossible, contrary to experience, or incredible as a matter of law. She found that the plaintiff’s version of events was unsupported by any other witness or evidence, and contrary to all existing evidence, and thus incredible as a matter of law.

Tara C. Fappiano represented Sferka Realty Corp.

Garnett v. Strike Holdings, LLC
Appellate Division, First Department
Docket No. 590015/2010
September 1, 2015

Reversal on Appeal – Court Relies on Assumption of Risk to Grant Summary Judgment in Go-Kart Case

HRRV obtained a unanimous reversal of the denial of its summary judgment motion in a case involving a go-kart accident at defendant Strike Holdings, LLC’s (“Strike”) premises. Plaintiff, an adult, commenced this action against Strike and alleged causes of action for negligence, negligent design, strict products liability, failure to warn and breach of warranty after she was bumped by other go-karts during a race at Strike’s premises. She claimed that, as a result of the impact, she sustained Reflex Sympathetic Dystrophy (“RSD”), among other injuries.

The Appellate Division, First Department determined that the common-law assumption of the risk doctrine was applicable to go-karting activities and that plaintiff assumed the risk of injury inherent in that activity. Those risks included the risk that her go-kart would bump into objects. The court held that it was equally foreseeable that there was a risk of collision (intentional or other wise) of go-karts. The Appellate Division, First Department held that the operator of the track does not have a duty to protect the go-kart rider from the inherent and foreseeable risk of being bumped by another go-kart.

With regard to her sundry product liability claims, the Appellate Division determined plaintiff failed to prove that the subject go-kart was defective. Likewise, her expert opinion, from Steve Bernheim, was insufficient and relied upon ASTM standards which were not applicable to her go-kart. Therefore, the case was dismissed in its entirety.

Carla Varriale represented Strike Holdings, LLC.

Babbit v. Bryant Park Corporation
Supreme Court, New York County
Index No. 156334/2014
August 26, 2015

Commercial Landlord of Ice Skating Rink Entitled to Pre-Answer Dismissal as it Owed No Duty to Plaintiff Based on Provisions of a License Agreement

Plaintiff, while skating at the ice rink at Bryant Park on December 8, 2012, allegedly fell and sustained injuries. She brought suit against Bryant Park Corporation (“BPC”) and Bryant Park Market Events, LLC (“BPME”), among other defendants, alleging that the accident was a direct result of the failure of defendants to properly control, monitor and police ice rink patrons from skating at an excess rate of speed, as well as defendants’ failure to control the ingress and egress of patrons to and from the ice rink.

Defendants moved, pre-answer, to dismiss the claims against BPC on the basis that documentary evidence conclusively established that it did not own and had no duty to operate, manage, control or maintain the ice rink at the time of plaintiff’s accident. Defendants submitted a Management Agreement between non-party property owner The City of New York and BPC, which provided BPC with an obligation to operate and manage Bryant Park generally. However, the Management Agreement also allowed BPC to delegate its functions to independent contractors, at its discretion. Defendants also submitted a License Agreement between BPC and BPME, which, coupled with the language of a subsequent Amendment, provided that BPME had the exclusive right to operate the ice rink and was solely responsibility for ensuring that the ice rink was safe.

Justice Nancy Bannon, in a decision granting defendants’ motion, determined that BPC was essentially an out-of-possession landlord with relation to the ice rink and noted that out-of-possession landlords are generally not liable for injuries that occur on a premises after possession and control has transferred to another party, subject to certain inapplicable exceptions. The judge held that BPC therefore did not owe a duty to plaintiff to maintain the ice rink, warranting dismissal of plaintiff’s complaint as against it.

Carla Varriale and Shawn Schatzle represented Bryant Park Corporation.

Tashonda L. Blankensumee v. B.B. King Blues Club & Grill
Supreme Court, New York County
Index No.: 150209/2013
August 3, 2015

Action alleging assault and negligent hiring and supervision of complicit employee dismissed on statute of limitations grounds

Plaintiff claimed to have been assaulted, detained and battered by an unnamed B.B. King employee. The complaint, which asserted causes of action for assault, intentional infliction of emotional distress, negligent supervision and conduct “beyond the bounds of a civilized society” was filed more than one year after the alleged incident.

Noting that the alleged assault, battery and intentional infliction of emotional distress claims were subject to a one-year statute of limitations, and that each was based on an intentional tort, not negligence (as alleged by the plaintiff), Justice Manuel J. Mendez dismissed these claims.

The court noted that the cause of action for conduct “performed with malice and willful intent,” and “beyond the bounds of a civilized society” has no basis in New York law and dismissed that claim.

Focusing mainly on the cause of action for B.B. King’s alleged negligent hiring and supervision of the unnamed employee by allowing plaintiff to be “intentionally, wrongfully, maliciously and with gross negligence, physically detained, assaulted, beaten and battered” by said unnamed employee in furtherance of his duties, Justice Mendez, noting that plaintiff alleged the negligent hiring and supervision of the aforementioned unnamed employee by allowing plaintiff to be “intentionally, wrongfully, maliciously and with gross negligence, physically detained, assaulted, beaten and battered” in furtherance of his duties, held that because the general rule is that a cause of action for negligent supervision is unavailable to a plaintiff when the offending party is claimed to be acting within the scope of their employment, and the plaintiff does not seek punitive damages (which in certain circumstances, provides an exception to this rule), the plaintiff’s claim for negligent hiring and supervision was precluded.

The court granted B. B. King’s motion for summary judgment and dismissed plaintiff’s complaint in its entirety.

Steven H. Rosenfeld, and Carmen A. Nicolaourepresented B. B. King Blues Club & Grill.

Amanda Cummings v. Brian S. Olson, Kelly's Tavern, Kelly's Tavern, Inc., Leggetts Sand Bar, Inshore Atlantic, Inc., Bar Anticipation, and Aleatory, Inc.
Superior Court of New Jersey, Appellate Division
Docket No. A-2497-13T2
July 22, 2015

New Jersey Appellate Court affirms dismissal of serious Dram Shop case against three bars based on plaintiff’s counsel’s “gross untimeliness”

On May 4, 2011, plaintiff Amanda Cummings was a passenger in a car driven by defendant, Brian S. Olson. Plaintiff fractured her neck and was otherwise seriously injured when Olson's car struck an unoccupied parked vehicle. At the time he struck the parked vehicle, Olson's blood alcohol content was .19, more than twice the presumptive level of intoxication under N.J.S.A. 39:4-50. Plaintiff filed suit against Olson under common law negligence and under the New Jersey Licensed Alcoholic Beverage Server Fair Liability Act, N.J.S.A. 2A:22A-1 to -7 (known commonly as the "Dram Shop Act"), and also named as defendants Kelly's Tavern, Bar Anticipation, and Leggetts Sand Bar (collectively "Dram Shop defendants"), alleging they were "licensed alcoholic beverage servers" under N.J.S.A. 2A:22A-3.

Plaintiff sought to recover compensatory damages from the Dram Shop defendants under N.J.S.A. 2A:22A-5(b) alleging they served Olson alcoholic beverages on the evening of the accident despite Olson being visibly intoxicated. Plaintiff filed her complaint on November 7, 2011. The Law Division administratively dismissed Olson from the case pursuant to Rule 1:13-7 on May 25, 2012. Olson's attorney attempted to file an answer on his behalf on October 16, 2012, but the Civil Division Manager's Office declined to file the responsive pleading because the complaint against Olson remained dismissed under Rule 1:13-7. As a customary gesture of professional 4 A-2497-13T2 courtesy, Olson's counsel signed a consent order to reinstate the complaint against his client. However, plaintiff's counsel neglected to file the executed consent order. Plaintiff's complaint against Olson was never reinstated to the active trial calendar.

The case proceeded thereafter through the discovery phase without Olson. The three Dram Shop defendants filed responsive pleadings. The original discovery end date was November 8, 2012. The trial court twice extended the discovery end date at the request of the parties, resulting in January 7, 2013 becoming the second extended discovery end date. The trial court extended the discovery end date a third time to April 8, 2013. When Olson failed to appear for his deposition, the court granted a motion to preclude him from testifying at trial. After the discovery end date passed, the three Dram Shop defendants filed motions for summary judgment. All three defendants argued plaintiff could not establish liability against them as matter of law because she had not presented (and could not present) any evidence, including expert testimony, showing Olson was served alcoholic beverages while he was visibly intoxicated on the night of the accident. Plaintiff filed a cross-motion seeking a fourth extension to the discovery end date, in order to, among other things, depose Olson. Plaintiff argued that without Olson's deposition, she was unable to present expert testimony. Plaintiff's counsel conceded summary judgment was warranted should the court find insufficient grounds to reopen and extend discovery.

The trial court denied plaintiff's motion, finding she had not established the good cause necessary to extend the discovery end date for a third time. The court also denied plaintiff's subsequent motion for reconsideration and to reinstate her complaint against Olson.

Represented by different counsel, plaintiff appealed the trial court’s rulings and argued that the trial court abused its discretion in granting the motion to preclude Olson's testimony at trial and the motions for summary judgment, and denying her motion to reopen and extend discovery. Plaintiff also argued the court erred in denying her subsequent motions for reconsideration and to reinstate her complaint against Olson.

In reviewing a trial court's decision to deny a motion to extend the discovery period under Rule 4:24-1(c), a court "is limited to a determination of whether the trial court mistakenly exercised its discretion[.]" Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 87 (App. Div. 2007) (citation omitted). The Appellate Division noted that it was bound to defer to the trial judge's authority to manage the litigation within the procedural framework established by the Supreme Court, mindful that it is not in a position to micromanage a case or substitute its own judgment for the judgment of the trial judge. See Townsend v. Pierre, 221 N.J. 36, 52-53 (2015).1

The court was satisfied that the trial judge properly exercised her discretionary authority in granting defendants' motions for summary judgment and denying plaintiff's belated motions to extend discovery and reinstate her complaint against Olson. The court painfully went out of its way to note that plaintiff's prior counsel did not take the steps necessary to prepare the case for trial, including filing, on a timely basis, Olson's consent to reinstate the complaint against him or take his deposition.

In multi-defendant cases, a party may seek reinstatement of a complaint administratively dismissed under Rule 1:13-7(a) on a showing of good cause, but only if the motion is filed within 90 days of dismissal. Thereafter, a party must demonstrate exceptional circumstances. Baskett v. Kwokleung Cheung, 422 N.J. Super. 377, 383-84 (App. Div. 2011). The court noted that plaintiff's efforts to reinstate the complaint against Olson were both grossly untimely and failed to meet the exceptional circumstances standard of review. In closing, the court stated that it saw no legal basis to interfere with the trial judge’s well-reasoned decision and affirmed the dismissal of the case.

Steven H. Rosenfeld and Carmen A. Nicolaou represented defendant Inshore Atlantic, Inc., which does business as Leggetts Sand Bar.

Szymczak v. The City University of New York
Supreme Court, Queens County
Index No. 2824/2015
July 20, 2015

Application to File a Late Notice of Claim Against the City University of New York in Relation to Swim Meet Burn Incident Denied

Petitioner alleged that her infant son, while at a swim meet as a member of the LaGuardia Aquatic Club (“the Club”) swim team, was burned by scalding hot water thrown at him by a teammate. The incident allegedly took place in the boy’s locker room of a facility owned and operated by the Variety Boys and Girls Club of Queens, Inc. (“Variety”).

Petitioner initially commenced an action against the Club and Variety, alleging that a combination of the Club’s negligent supervision of the team members and Variety’s negligent maintenance of a locker room faucet caused the incident. Petitioner thereafter filed a separate action which sought leave to serve a late Notice of Claim against The City University of New York (“CUNY”) on the basis that LaGuardia Community College (“the College”), a CUNY school, sponsored the Club, potentially imposing liability on CUNY. Despite the fact that the connection between the Club and the College was noted on the former’s website, the application against CUNY was not filed until over fourteen months following the incident.

CUNY opposed the application on the basis that the provisions of General Municipal Law sections 50-i and 50-e required petitioner to serve it with a Notice of Claim within ninety days of the incident as a condition precedent to commencing a lawsuit, which she failed to do. CUNY also argued that petitioner failed to establish a reasonable excuse for failing to timely serve the Notice of Claim. Additionally, CUNY argued that it did not acquire actual notice of the essential facts constituting the claim within ninety days of the incident, and that the substantial delay would prejudice its ability to maintain a defense on the merits as it would have otherwise been able to perform a timely investigation.

Judge Darrell L. Gavrin, in agreement with the opposition arguments set forth by CUNY, denied the application. Notably, the judge determined that petitioner failed to demonstrate a reasonable excuse for failing to serve a timely Notice of Claim, as the Club’s website indicated that its address was that of the College, and that it was sponsored by the College’s Recreation Department. In response to petitioner’s argument that she was not aware of the ninety day time limit to serve a Notice of Claim, Judge Gavrin held that alleged ignorance of the law was not a reasonable excuse. The judge also reasoned that the fact that a coach from the Club may have prepared an incident report was not sufficient to establish that CUNY acquired actual knowledge of the essential facts constituting the claim. The judge held that “actual knowledge” required knowledge of the facts underlying the legal theories on which liability was predicated, and that the potential existence of an incident report, especially in the absence of its actual contents, did not satisfy that requirement. Thus, Judge Gavrin held that granting petitioner’s application to serve a late Notice of Claim was not warranted.

Carla Varriale and Shawn Schatzle represented The City University of New York.

Aleksandr Yanovskiy v. Tim’s Diagnostic’s Auto Center
Supreme Court, Richmond County
Index No.: 150127/2013
July 17, 2015

Corporation held to have no duty to maintain premises owned by another corporation with which it shares a principal

Aleksandr Yanovskiy alleged that he was injured on August 6, 2012 at 2050 Clove Road, Staten Island, New York 10304, in front of an automobile repair center, Specifically, the plaintiff claimed that he slipped and fell on the sidewalk adjacent to or abutting the subject premises. He further alleged that all defendants were negligent in their inspection and repair of the subject sidewalk thereby causing his accident.

Defendant Bio-Tech Remediation & Training Institute, Inc. (“Bio-Tech”  moved for summary judgment prior to depositions based upon the undisputed evidence that although Bio-Tech and defendant Tim’s Diagnostic’s Auto Center had a common principal, Bio-Tech had no duty to maintain the sidewalk adjacent to the subject premises. Rather, Tim’s Auto had entered into a lease agreement with regard to the subject premises, which obligated it to maintain the sidewalk. The only connection of Bio-Tech to the premises was that its principal parked one of its trucks in the parking lot of the premises two to three times a week for a period of years. Bio-Tech, which was owned by the principal of Time’s Auto, had no other connection with premises.

Accordingly, the court granted Bio-Tech’s motion for summary judgment and dismissed all claims and cross-claims asserted against it. The court determined that Bio-Tech owed no duty to maintain, repair, inspect or control the sidewalk at the subject premises and further that Bio-Tech established that it did not create the purported defective condition or have actual or constructive notice of its existence.

Carla Varriale represented Bio-Tech Remediation & Training Institute, Inc.

Reynolds v. Avon Grove Properties and Meyer Contracting Corp.
Appellate Division, Second Department
Supreme Court, Dutchess County Index No. 2779/2013
June 17, 2015

Pre-answer dismissal based on defendant’s lack of ownership or management of property affirmed by Appellate Division

Plaintiffs, Mary Louise Reynolds and her husband Gerald A. Reynolds, filed a complaint in the Supreme Court, Dutchess County, seeking damages arising out of an incident that allegedly occurred on July 19, 2011. It was alleged that Mrs. Reynolds was caused to be injured at the premises located at 7 Pine Woods Road, Hyde Park, Dutchess, New York. She claimed her “legs gave way because she stepped into a deep depression and rut in the west sidewalk of the upper parking lot” of the premises. She named Meyer Contracting Corp. and Avon Grove Properties, the owner of the property, as defendants in the action.

Prior to commencing discovery, HRRV moved for summary judgment in the Supreme Court, Dutchess County, on behalf of Meyer Contracting Corp., arguing that it did not own, manage, control, or otherwise have any other connection to the property at the time of the accident. The lower court concluded that Meyer met its prima facie burden, through the submission of an affidavit of the president of the company attesting to the company’s lack of ownership or management of the property. Plaintiffs did not accept this fact, and offered various affidavits that the lower court excluded as speculation and hearsay, and insufficient to raise a question of fact to defeat the motion. Thus, Justice Pagones dismissed plaintiffs’ complaint, and plaintiffs appealed.

The Appellate Division Second Department affirmed the lower court’s decision, dismissing all claims against Meyer. The Court agreed that the defendant established its prima facie entitlement to judgment as a matter of law by presenting evidence that it did not manage the property. Thus, it did not owe a duty to the injured plaintiff. Plaintiffs failed to raise a triable issue of fact in opposition. Further, the plaintiffs’ argument that the motion was premature was unavailing. The plaintiffs failed to demonstrate that additional discovery might lead to relevant evidence or facts essential to oppose the motion that are exclusively within the knowledge or control of the movant (citing Burlington Ins. Co. v. Casur Corp., 123 A.D.3d 965, 965-66; Singh v. Avis Rent A Car Sys, Inc., 119 A.D.3d 768). As such, the Court concluded that the motion for summary judgment was properly granted.

Meyer Contracting Corp. was represented by Tara C. Fappiano.

Nakamura v. Montalvo
Supreme Court, Bronx County
Index No.: 308409/12
June 10, 2015

Simple strains, disc bulges and herniated discs alone held to not fulfill the serious injury threshold under  Insurance Law §5102(d) resulting in granting of summary judgment

Plaintiff, Mayan Nakamura, commenced an action to recover for the personal injuries she allegedly sustained on February 6, 2012 when she was involved in a multiple car accident in which her vehicle was struck in the rear. The accident occurred on the Northern State Parkway in the town of North Hempstead. The plaintiff alleged the following injuries as a result of the accident: C5-6 herniation; C4-5 disc bulge; C6-7 disc bulge; L2-3 disc bulge; L4-5 disc bulge; L5-S1 disc bulge; cervical radiculopathy; lumbar radiculopathy; and cervical and lumbar restrictions of motion.

Defendant filed a motion for summary judgment seeking a dismissal of the plaintiff’s Verified Complaint as she had not demonstrated that she sustained a “serious injury” as defined under Insurance Law §5102(d) and is therefore barred from recovery under Insurance Law §5104.

New York’s No-Fault Law precludes recovery for pain and suffering and other non-monetary detriment (non-economic loss) between covered parties, unless the plaintiff pleads and provides a “serious injury.” See, Insurance Law §5104(a). Insurance Law §5102(d) defines “serious injury” as:

a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body function or system; significant limitation of use of a body function or system; 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. See generally, Ins. Law §5102(d).

Defendant argued that there was no object evidence of any kind which showed that the plaintiff had sustained a permanent consequential limitation of use or significant limitation of use of any body part. It further asserted that the plaintiff’s subjective complaints of pain are insufficient to establish a serious injury, and allegations of disc herniation or disc bulge must be accompanied by evidence that it results in a limitation or loss of use.

The court found that the defendant had met the burden that plaintiff has not suffered a “serious injury” and that plaintiff failed to demonstrate by admissible evidence an objective and quantitative evaluation that she has suffered significant limitations to the normal function, purpose and use of a body organ, member, function or system sufficient to raise a material issue of factor for determination by a jury. Further the court held that plaintiff had not demonstrated by admissible evidence the extent and duration of her physical limitations sufficient to allow this action to be present to a trier of facts. Simple strains and even disc bulges and herniated discs alone do not automatically fulfill the requirements of Insurance Law §5102(d).

Gail L. Ritzert represented the defendant.

Roy Vivar v. DGC Capital Corp.
Supreme Court, Kings County
Index No. 4652/2010
May 26, 2015

Proof the agreement between Labor Law defendant and plaintiff’s employer did not apply to project where plaintiff was injured precludes third party action against employer

Roy Vivar, a union laborer, alleged that he fell several feet off a baker’s scaffold while performing demolition work at a construction site where a 24 Hour Fitness club was being built. The general contractor, DGC Capital Corp., commenced a third-party action against Diversified Construction Corporation, which was also the plaintiff’s employer, asserting indemnification and contribution claims. The third-party claims were based, in part, on a Vender Agreement between Diversified Construction Corporation and the general contractor, DGC Capital Corp. intended to cover numerous construction projects.

Recognizing that this claim would likely present strict liability under Labor Law §240(1) to the general contractor and owner, in addition to the serious nature of the plaintiff’s injuries, HRRV quickly investigated and interviewed the other laborers at the site and sought all documents from the New York City Department of Building and OSHA concerning the project.

Additionally, HRRV sought and conducted extensive discovery, including serving Notices to Admit and multiple deposition notices on the general contractor, who ultimately confirmed that the Vendor Agreement did not cover the subject project and that the Vendor Agreement was executed well after the date of the plaintiff’s alleged incident.

Counsel for DGC Capital then attempted to argue that the Vendor Agreement was retroactive, but through questioning of DGC Capital’s representative during the deposition, the general contractor was forced to admit that the terms of the Vendor Agreement did not apply retroactively. Additionally, during discovery HRRV demonstrated that the work performed by the plaintiff at the project site was done on a time and material basis, pursuant to a Paymaster Agreement. Notably, the Paymaster Agreement did not contain any contractual indemnification or insurance procurement provisions. Thus, HRRV argued on summary judgment that the third-party plaintiff could not sustain any claims for contractual indemnification or contribution.

With respect to the third-party claims for common law indemnification and contribution, HRRV argued that the plaintiff elected to obtain workers’ compensation benefits and did not sustain a “grave injury” under Workers’ Compensation Law §11.

At the conclusion of discovery, we summary judgment was granted in favor of Diversified Construction Corporation

Gail L. Ritzert represented Diversified Construction Corporation.

Tarulli v. Bay Club Swim and Fitness Center
Civil Court, Queens County
Index No. 32646/14
May 22, 2015

Termination of Plaintiff’s Membership in a Swim and Fitness Center Provides Basis for Pre-Answer Dismissal of Complaint

 Judge Dona Marie Golia, sitting in Civil Court, Queens County, granted a Pre-Answer Motion to Dismiss on behalf of American Leisure Services Corp., an entity that operated The Bay Club Swim & Fitness Center. Plaintiff’s membership in the Club was terminated due to “objectionable behavior,” proscribed by the Club’s Rules and Regulations. Plaintiff had executed a “Waiver of Liability and Indemnity Agreement” prior to the incident, appended to his Membership Application agreement. The court determined that based upon this documentary evidence (NY Civil Practice Law and Rules 3211(a)(1)), by executing the Agreement, plaintiff had agreed to release American Leisure from any legal actions arising from his membership at the Swim and Fitness Club. The court determined that the Release was valid and plaintiff failed to meet his burden in opposition, in providing sufficient facts or allegations to void the Release. Given there were no allegations that rose to the level of gross negligence or willful misconduct, that the Release would not protect American Leisure from, the court granted the motion based upon the Release language alone. See Davis v. Rochdale Vil., Inc.,109 AD3d 867 (2d Dep’t 2013). 

Thereafter, the court determined that each and every cause of action fails to state a cause of action against all defendants collectively (NY Civil Practice Law and Rules 3211(a)(7)). The breach of contract claim failed to specify the parties to an agreement plaintiff entered into and the terms. The cause of action for a return of “common charges” was determined not to exist. Plaintiff’s claim that he was discriminated against failed because of the absence of facts that showed he was discriminated against due to his race, creed, color, national origin, sexual orientation sex, disability or marital status, as prohibited by statute.

The court construed plaintiff’s “pain and suffering” cause of action as one for intentional infliction of emotional distress. However, the facts alleged in the complaint, removing plaintiff from the Swim center and terminating his membership, were determined by the court not to qualify as “extreme and outrageous” conduct to support such a claim, as a necessary element.

Lastly, plaintiff’s “loss of income” cause of action, construed by the court as a claim for tortious interference with contract, was also unsupported by the facts alleged in the complaint, given there was no allegation that defendants engaged in conduct which resulted in a breach of contract- plaintiff’s claim that he his membership termination resulted in expulsion from a networking referral group.

Carla  Varriale represented American Leisure Services Corp.

Randal Bruno v. New Cingular Wireless, PCS, LLC, et. al.
Supreme Court, Kings County
Index Number 9990/11
May 6, 2015

Absence of Ownership, Management, Control of Building Results in Grant of Summary Judgment to Telephone Contractor in Labor Law Case

Randal Bruno was a maintenance worker employed by the New York Historical Society (“NYHS)”. He was allegedly injured on November 30, 2010 when he slipped and fell from a step-over structure designed to perform a platform over a cable tray or conduit on the roof of the building owned by NYHS. At the time of the accident, the plaintiff was escorting an employee of T-Mobile to perform work on T-Mobile’s equipment located on the roof the building. The plaintiff alleged violations of New York Labor Law §§ 200, 240(1) and 241(6). More specifically, the plaintiff claimed that the step over was defective and the defendants failed to provide a uniform tread width and allowed the treads to become worn and slippery, failed to provide handrails and failed to provide adequate illumination.

New Cingular filed a motion for summary judgment before production of a deposition witness on its behalf, New Cingular produced an Affidavit from NYHS’ President of Operations, who averred that New Cingular did not lease, own, maintain, control, repair or manage any portion of the building and that although a lease agreement with New Cingular existed, it was never executed. Further, New Cingular submitted the deposition testimony of T-Mobile’s employee that was present at the time of the accident, who testified that New Cingular did not have any equipment on the roof and that he had never seen any New Cingular employees on the roof.

Based on the undisputed evidence submitted, the court granted New Cingular’s motion for summary judgment. It determined that New Cingular demonstrated that it did not lease, own, maintain, control, repair or manage any portion of the building and that it was not an owner, contractor or agent within the meaning of the Labor Law.

Carla Varriale represented New Cingular.

Costidis v. The City of New York, New York City Parks Department, Queens Ballpark Company, L.L.C. and Sterling Mets, L.P.
Supreme Court, Queens County
Index Number 701929/12
April 16, 2015

Court Dismisses Patron’s Claim for Trip And Fall on Walkway Edge

While walking from the parking lot and towards Citi Field on his way to watch a game on July 15, 2011, plaintiff, a patron, allegedly lost his balance, fell and sustained personal injuries after stepping on the edge of a walkway. He alleged that the property owners should be held liable for the accident resulting from the purported hazardous condition which had been created by the placement of tree beds, a crowded walkway and the height differential between the walkway and the adjacent tree bed.

The Court granted the multi-pronged motion for summary judgment and dismissed plaintiff’s action against defendants City of New York, New York City Parks Department, Queens Ballpark Company, L.L.C. and Sterling Mets, L.P.

First, the Court found that the documentary evidence and an accompanying affidavit from the Executive Director, Ballpark Operations for Queens Ballpark Company, L.L.C. established that plaintiff lacked a cause of action as to Sterling Mets, L.P.

Next, after consideration of the height and width of the purported defect, as well as the time, place and circumstances of the injury, Justice Darrell L. Gavrin held that the minor change in surface and height at the walkway edge, where it accommodated tree wells near the stadium entrance, was not a defect and did not have the characteristics of a trap or a snare. Justice Gavrin noted that defendants had met their prima facie burden by establishing through an affidavit from an expert engineer that the walkway was clear of any characteristics that could be considered a trap or snare. He relied upon the affidavit from Director, Transportation at Queens Ballpark Company, L.L.C. that there were no records of similar prior accidents or complaints, from the date of the construction of the Stadium to the date of the accident.

In conclusion, Justice Gavrin held that the facts in this case warranted judgment as a matter of law. There is no duty to warn against an open and obvious condition which is not inherently dangerous and a property owner may not be held liable for trivial defects not constituting a trip or nuisance, over which a pedestrian might merely stumble, stub his toes or trip. Justice Gavrin granted this motion in its entirety, awarding summary judgment in favor of the defendants and dismissing the complaint.

Carla Varriale represented the defendants City of New York, Queens Ballpark Company, L.L.C. and Sterling Mets, L.P.

Dennis Grant v. 78th and Park Corp. and Douglas Elliman Property Management
Supreme Court, Kings County
Index No.: 4382/2012
April 9, 2015

Plaintiff’s summary judgment motion pursuant To Labor Law §240(1) denied based on  plaintiff’s failed to establish that plaintiff’s own negligence was not the sole proximate cause of his injuries

Dennis Grant commenced the subject action against 78th and Park Corporation and Douglas Elliman Property Management, asserting that the defendants violated Labor Law section 240(1) and 241(6). It is alleged that on January 26, 2012, the plaintiff was injured after he fell from a ladder while performing construction work in the bathroom of an cooperative apartment in the building located at 876 Park Avenue. The building was owned by the cooperative corporation 78th and Park Corporation and managed by Douglas Elliman Property Management. The apartment was undergoing a total renovation. At the time of the accident, plaintiff was standing on an A-frame ladder and was fastening a cement board to the framing of one of the walls. Prior to the accident, the floor in the bathroom had been demolished and the sub-floor, which was exposed.

Plaintiff’s counsel moved for summary judgment on the issue of defendants’ liability under Labor Law §240(1). Pursuant to Labor Law §240(1), a nondelegable duty is imposed upon owners, contractors, or their agents to provide proper safety devices to workers performing work such as erection, demolition, or altercation. See, Esteves-Rivas v. W2001Z/15CPW Realty, LLC, 104 A.D.3d 809 (2nd Dep’t 2007). To prevail on a Labor Law §240(1) cause of action, the plaintiff must establish that the statute was violated and that the violation was a proximate cause of his injuries. See, Blake v. Neighborhood Hous. Serv. of N.Y. City, 1 NY3d 280, 287 (2003).

Defendants opposed plaintiff’s motion and argued that plaintiff’s alleged injuries were not the direct consequence of defendants failure to provide plaintiff with adequate protection. Rather, the plaintiff’s accident and his resulting injuries were solely the direct consequence of plaintiff’s own actions. Defendants argued that plaintiff failed to establish, as a matter of law, that plaintiff’s own negligence was not the sole proximate cause of his injuries. The court agreed. A fall from a scaffold or ladder “does not establish, in and of itself, that proper protection was not provided, and the issue of whether a particular safety device provided proper protection is generally a question of fact for the jury.” Esteves-Rivas v. W2001Z/15CPW Realty, LLC, 104 A.D.3d 809 (2nd Dep’t 2007), quoting Alava v. City of New York, 246 A.D.2d 614, 615, 668, N.Y.S.2d 624, and Martinez v. Ashley Apts Co., LLC, 80 A.D.3d 734, 735, 915 N.Y.S.2d 620). Here, the Court determined that the plaintiff’s testimony demonstrated the existence of triable issues of fact, inter alia, as to how the accident occurred, including whether he fell because he merely lost his balance or because he mis-positioned the ladder, and whether his conduct was the sole proximate cause of the ladder’s tipping over. Accordingly, plaintiff’s motion for summary judgment was denied.

Gail L. Ritzert represented the defendants.

Pandolfini v. The City of New York
Supreme Court, Richmond County
Index No.: 10270/12
April 7, 2015

Court Dismisses Trip and Fall Claim Citing Open and Obvious Condition

HRRV obtained summary judgment on behalf of defendants the City of New York, New York City Department of Education, the Michael J. Petrides School, Staten Island Youth Soccer, Inc. and Eastern New York Youth Soccer Association, Inc. in a personal injury action arising out of a trip and fall accident at (or near) a school soccer field.

Plaintiff, who was walking along a natural pathway located at the Michael J. Petrides School en route to the daughter’s soccer game, alleged that she was injured when she tripped and fell over exposed tree roots. Plaintiffs alleged that defendants were negligent in failing to maintain the premises and control the mean of ingress and egress to the soccer field and therefore failed in their respective duties to make the premises safe for the general public.

At the time of the accident, plaintiff admitted she walked into a wooded area carrying her infant daughter and an oversized shoulder bag. Prior to the accident, she was not looking where she was going, she simply walked down on unpaved path leading to the soccer field where “everyone” else was walking. She tripped and fell over the roots, a natural geographic feature of the hillside leading to the soccer field. The defendants SIYSL and ENYYSA were granted summary judgment because they did not own, occupy and or make special use of the hillside area at the time of the accident. Thus, defendants could not be held liable for any injuries.

With respect to the school defendants, the Court, simply held that no duty or care was owed regarding the existence of the open and obvious condition. Furthermore, the natural condition was not obscured in any fashion and plaintiff. Plaintiff’s failed to adduce any evidence that the condition was defective or dangerous through expert or other evidence.

Carla Varriale represented the defendants.

Shareef v. The Doe Fund
Supreme Court, Queens County
Index No.: 17217/2012
April 6, 2015

Workers compensation law bars claims of employee being transported to his residence in employer’s vehicle being driven by his supervisor where the employer had undertaken responsibility to transport its employees

Plaintiff was injured in an automobile accident while he was a passenger in a vehicle owned by The Doe Fund, Inc., his employer, being driven by his supervisor from his place of employment to his residence. The evidence revealed that The Doe Fund had undertaken responsibility to transport its employees to an from work. The court further held that the co-defendants did not offer any evidence which would have resulted At the outset of the litigation, HRRV filed a motion for summary judgment on behalf of The Doe Fund and the driver of the vehicle, based upon the Workers’ Compensation defense as plaintiff was an employee of The Doe Fund on the date of the accident and filed for, and received, Workers’ Compensation benefits following the accident. This motion was granted without opposition as to plaintiff and the complaint was dismissed as against the moving defendants. However, the court denied that portion of the motion that sought a dismissal of the co-defendants’ cross-claims as against The Doe Fund and the driver without prejudice to renew following completion of discovery and depositions. The court found that while those defendants established that the plaintiff received Workers’ Compensation benefits under a policy issued by the client entity, they failed to present any evidence that the proceeding before the Workers’ Compensation Board was adversarial or that the co-defendants participated in the proceeding. The court further held that while disputes as to whether the Workers’ Compensation Law is applicable in a particular case rests within the primary jurisdiction of the Workers’ Compensation Board, the determination of the Board is not binding against a defendant who was not a party to the compensation proceeding and where the hearing was non-adversarial.

Following the completion of the depositions and discovery, The Doe Fund and the driver re-filed the motion seeking a dismissal of co-defendants’ cross-claims based upon section 11 and 29 of the Workers’ Compensation Law as plaintiff was a trainee/employee of the client entity at the time of the subject accident. Further, it was argued that, based upon the deposition testimony of the plaintiff as well as his supervisor, the plaintiff was within the scope of his employment with The Doe Fund at the time of the accident and received Workers’ Compensation Benefits as a result thereof, thus precluding any direct claims against plaintiff’s employer or co-workers.

The motion was granted in its entirety and all cross-claims asserted by co-defendants against The Doe Fund and the driver were dismissed. The Doe Fund and the driver argued that plaintiff’s alleged injuries were sustained during the course of his employment, and that co-defendants’ argument that plaintiff’s accident occurred while he was commuting home from work was misplaced. In further support of the motion, The Doe Fund and the driver presented testimony from the plaintiff that clearly established that, had the accident not occurred, the Doe Fund vehicle in which plaintiff was a passenger would have returned to his place of employment, and not to his home. Co-defendants argued that, despite receiving Workers’ Compensation benefits, plaintiff was not working in the course of his employment at the time of the subject accident, as the accident occurred as plaintiff was coming home from work. In reaching its decision, the court held that generally, while travel to and from a work site is not considered to be within the scope of employment, an exception to this is when, as in the instant situation, an employer undertakes responsibility to transport its employees. The court further held that the co-defendants did not offer any evidence which would have resulted in a different outcome before the Workers’ Compensation Board, and that the co-defendants failed to raise a triable issue of fact with respect to whether plaintiff was acting within the scope of his employment.

Gail L. Ritzert and Jessica Serva represented The Doe Fund, Inc. and Michael DeFaria.

Griffin v. Parkash 835, LLC
Supreme Court, Bronx County
Index Number 305151/12
March 19, 2015

Plaintiff’s Own Testimony Supports Dismissal of Negligent Security Claim Against Building Owner

Troy Griffin alleged that he was assaulted on June 25, 2010 at the building located at 835 Walton Avenue, Bronx, New York. Specifically, he claimed he was struck in the head by a skateboard wielded by an unknown perpetrator. While the complaint and bill of particulars alleged claims of negligent security in the building, which led to the assault, plaintiff actually testified otherwise. He admitted that the incident occurred outside the building and involved an unknown individual who was chasing plaintiff’s brother. It was believed the perpetrator had a personal issue with plaintiff’s brother related to his bicycle and/or an ex-girlfriend. The plaintiff sustained a skull fracture from the attack, and claimed that he had sustained various residual injuries associated with a head injury.

Plaintiff asserted a negligent security claim and argued that the building should have taken better measures to safeguard an area they knew was frequented by loiterers. Defendants successfully showed that all of the evidence, including plaintiff’s testimony and that of his brother, supported a conclusion that the incident occurred outside of the building, and that the assailant or assailants did not come from inside the building, but from outside. Justice Sharon Aarons agreed that the evidence was undisputed on these points, and also that there had been no showing that the assailant was not a tenant or invitee to the building. Under these circumstances, Justice Aarons concluded that the defendants had no duty to protect the plaintiff from the assailant. As such, plaintiff’s complaint was dismissed in its entirety.

Tara C. Fappiano and Carmen A. Nicolaou represented the defendants.

Vazquez v. Takara Condominium
Supreme Court, Bronx County

Index Number: 300498/2010
February 23, 2014

Court Rejects Feigned Affidavit and Grants Summary Judgment to Property Owner in Labor Law Case

Plaintiff claimed he slipped and fell on a stairway under construction at a condominium site and asserted claims pursuant to Labor Law 240 and 241(6). Plaintiff further alleged that the cause of his fall was a combination of debris on the steps and a loose railing. In addressing defendant’s motion for summary judgment, the court pointed out, the plaintiff testified that his hand came off of a handrail due to his own weight, and also identified dust from rust removal being done by a sub-contractor as making the stairs slippery. But, in opposition to the motion, the plaintiff submitted an affidavit which identified various other conditions as the cause of the fall: a combination of slippery mildew, dirty rust, worn concrete, and a broken handrail, and old and worn stair treads. There were photographs taken after the accident which showed no dust on the stairs.

The court held that the affidavit was clearly tailored to avoid the consequences of plaintiff’s deposition testimony and, thus, it was insufficient to raise and issue of fact. Further, the court held there was no evidence that of any defect in the staircase was a proximate cause of plaintiff’s injuries. It also held that there was no credible evidence that the negligent acts or omissions of the sub-contractor were the proximate cause of the injuries.

Carmen A. Nicolaou represented Takara Condominium.

Klod v. Horizon at Forest Hills LLC
Supreme Court, New York County
Index Number 9492/14
February 9, 2015

Plaintiff’s Inability to Identify Specific Cause Of Trip And Fall on Sidewalk Results in Award of Summary Judgment to Property Owner

Plaintiff Valentina Klod alleged that she sustained injuries when she tripped and fell due to a transient condition on the public sidewalk adjacent to certain property managed by Novo 64 Condominium (“Novo”). She testified that as she was walking on the adjacent sidewalk, she tripped and fell on something that she believed could have been debris from the adjacent dumpster, although she admitted that she could not specifically identify the object that caused her to fall. She testified that she did not see the object before or after her fall, nor did she know for certain where it came from. She attempted to hold Novo, as well as the premises owner liable for her injuries for their purported negligence in failing to properly maintain the sidewalk.

Following plaintiff’s deposition, defendants moved for summary judgment. We argued, on behalf of Novo, that plaintiff’s inability to identify the cause of her fall was ultimately fatal to her claim. We pointed out that plaintiff could only speculate that she tripped over unidentifiable transient debris on the sidewalk, and she could not prove that Novo had either actual or constructive notice of any alleged defect on the sidewalk. The Court agreed and dismissed plaintiff’s claims. It held that “it is well-settled that the granting of an application for summary judgment is appropriate where a plaintiff cannot identify the cause of her fall or the specific act or omission by the defendants which caused her accident.  Citing Kaplan v. Great Neck Donuts, Inc., 68 A.D.3d 931 (2nd Dep’t 2009); Denicola v. Costello, 44 A.D.3d 990 (2nd Dep’t 2007).     

Steven H. Rosenfeld and Carmen A. Nicolaou represented Novo 64 Condominium.

S. Bros., Inc. v. Leading Insurance Services, Inc.
Appellate Division, First Department
Index No.: 650328/2013
January 22, 2015

Appellate Division Affirms Dismissal of Bad faith Claim

S. Bros., Inc. (“S. Bros.”) commenced a declaratory judgment against Leading Insurance Services, Inc. (“Leading”) stemming from an underlying litigation entitled Klein v. S. Bros. Inc. (“the underlying action”), where Klein, a member of the Satmar Hasidic Community, alleged that S. Bros. – a neighborhood pharmacy – disclosed her patient profile, including her medical and prescription drug history, to her former brother-in-law, Joel Herman, without her authorization. Klein alleged that S. Bros.’s release of her medical records: (i) breached S. Bros.’ fiduciary duty to keep her medical records private; (ii) violated two statutes – Education Law [8 NYCRR] § 63.6 and the Health Insurance Portability and Accountability Act of 1996; and (iii) claimed that S. Bros. acted purposefully, illegally, and affirmatively by knowingly disseminating Klein’s medical information. Klein sought $5,000,000.00 in compensatory damages and an award of punitive damages.

Leading disclaimed coverage to S. Bros. (“the Disclaimer”) for the claims asserted in the underlying action on the basis that: (1) the claims against S. Bros. did not fall within an enumerated offense of “personal and advertising injury” as delineated by the Leading policy issued to S. Bros. (“the Policy”); (2) the Knowing Acts Exclusion precluded coverage (even if the claims fell within an enumerated offense of “personal and advertising injury”); and (3) the claims fell within the Penal Statute or Ordinance Exclusion contained within the Policy’s Pharmacists Broad Coverage Endorsement. S. Bros. requested that Leading reconsider its coverage position and provide it with a defense in the underlying action. S. Bros. then commenced the declaratory judgment action against Leading on January 30, 2013. The complaint alleged that: (i) Leading has a duty to defend S. Bros. in the underlying action; and (ii) Leading has a duty to indemnify S. Bros. for any liability incurred in the underlying action. On March 5, 2013, Leading rescinded its disclaimer of coverage and agreed to provide a defense to S. Bros. under a reservation of rights.

However, S. Bros. refused to dismiss the declaratory judgment complaint, and, instead, opted to amend its complaint to assert bad faith claims against Leading. It alleged that Leading acted in bad faith by: (i) providing Klein with the Disclaimer; (ii) attempting to negotiate a settlement; and (3) disclaiming coverage based on inapplicable exclusions.

Leading moved to dismiss the action including the bad faith claim. The Supreme Court granted Leading’s motion to dismiss on September 17, 2013. The Court found that there was no basis to find that Leading acted in bad faith. Moreover, the Supreme Court, noted that a reasonable insurer could have come to a good faith conclusion that Policy exclusions were applicable. The Supreme Court concluded that S. Bros. possessed only a breach of contract claim, which was resolved when Leading agreed to provide S. Bros. with a defense in the Klein Action.

S. Bros. appealed the Supreme Court’s decision on its bad faith claim. On appeal, Leading argued that New York law does not recognize bad faith claims against an insurer for an alleged breach of the insurance contract. See New York University Continental Insurance Co., 87 NY2d 308 [1995]. Leading disclaimed coverage, then reconsidered its position at the insured’s request shortly after the Disclaimer and accepted S. Bros’ defense in the underlying action. Leading then successfully negotiated and paid the entirety of the settlement in the underlying action and the only issue remaining is that of reasonable attorneys’ fees expenses in the underlying action. We further argued that the prevailing law in New York is that an award of attorneys’ fees is warranted only when the insurer places the insured in a defensive posture, which was not the case here.

The Appellate Division, First Department unequivocally rejected S. Bros.’ contention that Leading’s initial disclaimer of coverage constituted bad faith, stating “[t]he record does not evince ‘a conscious campaign calculated to delay and avoid payment on [plaintiff’s] claims.’” (internal quotations omitted). The Court further held that the allegations in the underlying action could fall within one of Leading’s policy exclusions, thereby justifying Leading’s initial disclaimer of coverage. The First Department unanimously affirmed the Supreme Court decision granting Leading’s motion to dismiss and awarded costs to Leading.

Abbie Havkins represented Leading Insurance Services, Inc.

T.L.M. Realty Corp. v. Glick
Supreme Court, New York County
Index Number 603870/2008
January 16, 2015

Broker Granted Summary Judgment in Breach of Contract and Negligence Action

Plaintiffs sought $2,150,000 in damages for an alleged breach of contract and negligence by plaintiffs’ insurance brokers. Defendant Phil Glick (“Glick”), a former insurance broker with Citizens Clair Insurance Agency, LLC (“Citizens Clair”), and Hub International Pennsylvania LLC (“Hub”), were the brokers for plaintiff TLM Realty Corporation (“TLM”). In 2004, TLM and Hub entered into a risk management agreement whereby Hub would act as an “outsourced risk and claim management department for TLM realty for an annual fee” of $50,000.00. Around the same time, Hub procured a claims-made Directors and Officers (“D&O”) and Employment Practices Liability (“EPL”) insurance policy (the “Policy”) from American International Specialty Lines Insurance Company (“AISLIC or “AIG”) on behalf of TLM. The Policy was effective from December 20, 2004 to December 20, 2005 and provided $2,000,000.00 in coverage for loss to directors, officers, outside executives, and employees of the insured, TLM, arising out of claims (1) first made within the policy or discovery period for “wrongful acts” and (2) reported to AISLIC during the policy period, the discovery period or during the tail coverage. Only TLM was a named insured on the Policy. TLM opted not to renew the Policy in December, 2005.

Plaintiffs were sued in an underlying fraud/breach of fiduciary duty action (“the Underlying Action”) brought by their former co-investors following the sale of a jointly owned investment property (“the Property”). Plaintiffs’ former partners alleged that Ron Oehl, the principal of each plaintiff, engaged in self-dealing – he purportedly sold the Property to himself at an artificially low price – to their detriment.

Plaintiffs failed to notify Hub of the Underlying Action. Nonetheless, plaintiffs commenced a broker malpractice action arising out of Hub’s purported failure to: (1) timely report the Underlying Action to plaintiffs’ D&O liability carrier; (2) educate plaintiffs regarding the D&O policy in order to ensure that the Underlying Action was reported during the time that the D&O policy was in force; and (3) obtain a D&O policy that covered each plaintiff. Plaintiffs sought the return of the $1,450,000.00 they paid to settle the Underlying Action, along with the $700,000.00 in costs incurred to defend the Underlying Action.

Plaintiffs argued that Hub failed to ensure that all plaintiffs would be insured under the Policy and further that Hub failed to properly educate plaintiffs on the types of insurance purchased by plaintiffs. Plaintiffs further argued that it failed to report the underlying action to Hub because it was not properly educated with regard to D&O insurance. TLM also argued that because of the agreement, Hub and TLM had a special relationship whereby Hub had an additional duty with respect to the education of the scope of the D&O Policy and reporting of claims, and Hub breached that duty leading to TLM’s failure to report the underlying action and obtain coverage.

Hub argued that plaintiffs’ failure to maintain D&O coverage, purchase tail coverage, or exercise the discovery clause, all as suggested by Hub, and their failure to report the underlying claim to Hub, resulted in a lack of coverage for TLM in the Underlying Action. Plaintiffs were aware of the possibility of a suit as early as May, 2004, when the D&O coverage was in force. Had plaintiffs notified Hub of the potential claim, Hub could have timely reported it to the D&O insurer. However, Hub could not provide such notice as plaintiffs knowingly failed to inform Hub of the potential claim. Moreover, plaintiffs’ were aware of the underlying claim and lawsuit at the time they chose not to renew the D&O coverage. Nevertheless, plaintiffs claimed that Hub breached its duty of care – even though plaintiffs decided not to pay for D&O insurance at a time when it knew that a breach of fiduciary/fraud claim had been brought. Although TLM was aware of the types of claims that could be covered by D&O coverage (some of which were the exact claims alleged against TLM in the Underlying Action), TLM did not renew the D&O coverage, and further, failed to notify Hub of the Underlying Action until over one year after they received notice of suit.

The Court agreed with Hub and granted Hub summary judgment. Citing to documentary evidence as well as deposition testimony, the Court found that TLM only made “vague and conclusory” allegations regarding Hub’s purported breach of contract and did not undermine the undisputed fact that TLM did not report the Underlying Action to Hub in the first instance. The Court also held that TLM could not point to a specific flaw in Hub’s education of TLM regarding insurance coverage. TLM simply provided its own conjecture which was insufficient to establish a lack of education on the part of Hub. The Court noted that TLM’s assertions that Hub failed to properly educate it about insurance coverage was belied by the numerous emails and documents Hub provided to TLM explaining D&O coverage and providing examples of D&O claims. The Court also dismissed TLM’s argument that it had a special relationship with Hub. The Court found that even if a special relationship did exist, it did not relieve TLM of its responsibility to timely report claims to Hub for reporting to TLM’s insurer. Finally, the Court found that Hub did not negligently fail to procure insurance as emails conclusively established that Hub procured coverage for the entities requested by TLM.

Abbie Havkins represented the defendants.

McClive v. USTA National Tennis Center, Inc.
Appellate Division, Second Department
Docket Number 2014- 05932
January 14, 2015

Appellate Court Reverses Denial of Summary Judgment in Alleged Overcrowding and Inadequate Lighting Case at U.S. Open

Plaintiff Susan McClive brought an a lawsuit for personal injuries she incurred while exiting the U.S. Open in September 2011, against defendants, USTA National Tennis Center Incorporated (“NTC”), United States Tennis Association Incorporated (“USTA”), the City of New York (the “City”), and New York City Industrial Development Agency. Briefly, McClive alleged that on September 2, 2011, at approximately 8:25 p.m., while exiting the parking lot at the U.S. Tennis Center in Flushing, Queens, she sustained personal injuries when she was bumped from behind and knocked to the ground by an unknown individual running past her. McClive alleged that defendants failed to provide adequate crowd control and adequate lighting, which led to her injuries.

At the close of discovery, we moved for summary judgment on behalf of the defendants. We argued that the undisputed documentary evidence, including McClive’s deposition testimony, undoubtedly established that her injuries were proximately caused by the conduct of an unidentified third-party, for which defendants cannot be held liable, and not due to any purported inadequate crowding or inadequate lighting. We argued that McClive could not demonstrate that her freedom of movement was unduly restricted to the point where she could not find a place of safety, which is necessary to maintain an inadequate crowd control claim. Similarly, we argued that McClive could not demonstrate that any purported inadequate lighting played any role in bringing about her accident. We pointed out that New York courts have consistently dismissed plaintiff’s negligence claims as a matter of law, under similar circumstances.

Nonetheless, the court below denied defendants’ summary judgment motion, based in part on an affidavit submitted by plaintiff solely in opposition to the summary judgment motion, stating that she had difficulty seeing where she was walking. The court below held that plaintiff raised an issue of fact as to the existence of a defective condition on the premises, namely the adequacy of the lighting along the walkway leading to and from the venue. We appealed.

In an unanimous decision, the Appellate Division, Second Department reversed the court below, and granted defendants’ motion for summary judgment dismissing the complaint. We argued that plaintiff’s affidavit should not have been considered as it was nothing more than an attempt to create a feigned issue of fact, and was in clear contradiction to her prior sworn testimony that lighting had nothing to do with bringing about her accident. The Appellate Division agreed that defendants met their burden in demonstrating that plaintiff was unable to establish that her freedom of movement was unduly restricted by the crowd, or was unruly to the extent necessary to impose liability upon defendants. Citing Ganapolsky v. Barnes & Noble, 297 A.D.2d 702, 747 N.Y.S.2d 391 (2nd Dep’t 2002); Palermo v. New York City Tr. Auth., 141 A.D.2d 809, 530 N.Y.S.2d 25 (2nd Dep’t 1988). Similarly, the Court found that McClive failed to raise a triable issue of fact as to whether the alleged inadequate lighting condition proximately caused her to fall. Citing Curran v. Esposito, 308 A.D.2d 428, 764 N.Y.S.2d 209 (2nd Dep’t 2003). Accordingly, the Appellate Division dismissed plaintiff’s Complaint against defendants in its entirety.      

Steven H. Rosenfeld and Carmen A. Nicolaou represented USTA National Tennis Center Inc., United States Tennis Association Inc., the City of New York, and New York City Industrial Development Agency. 

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