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HRRV in the Courtroom 2016

Villada v. TLM Group, LLC, et al
Supreme Court, Queens County
Index No. 25332/2012
December 30, 2016

Summary Judgment Granted to Project Manager Based on its Lack of Supervisory Control in Labor Law Case

Carlos Villada, a construction worker, was hired to work on a roof demolition project at a building owned by defendant 452 Fifth Owners. Defendant CBRE was the managing agent of the building and was responsible for the daily operations of the building, while defendant TLM Group was retained to manage the roof rehabilitation project, who in turn recommended hiring the construction company that employed the plaintiff. Plaintiff alleged he was seriously injured while pulling a metal cart filled with debris up a plywood ramp to a hoisting gantry that was approximately one foot above ground level, and which tipped over onto him and fractured his ankle. Plaintiff sued for damages under sections 200, 240(1) and 241(6) of the Labor Law.

Plaintiff testified that he was directed by his employer, MRS, to collect debris in a wheeled dumpster and to roll it onto the plywood ramp before hoisting it to a lower level using the gantry. He further testified that he was unfamiliar with TLM or any of its employees and never interacted with anyone from TLM while working on the roof demolition project. Likewise, TLM’s representative testified that TLM was not responsible for monitoring the work performed on the rooftop or overseeing site safety. Instead, MRS was the only party responsible for overseeing the construction on the roof.

Accordingly, TLM filed its motion for summary judgment and argued that it did not have any control over the plaintiff’s work and the evidence demonstrated that the plaintiff’s employer, MRS, exclusively directed and controlled the methods and means of the plaintiff’s work at the subject premises. In addition, TLM argued that any general supervisory authority it may have had over the project was insufficient to establish liability under Labor Law § 200. Furthermore, TLM also argued that the ramp in question was a mere passageway and not a tool used in the performance of any work, in accordance with Labor Law § 240(1), and that the plaintiff did not suffer from a “gravity-related” risk as required under the Labor Law. More specifically, the plaintiff did not fall from a height and was not struck by a falling object while working. Finally, TLM argued that the plaintiff failed to demonstrate a violation of Industrial Code Rules 23-1.7 (f), 23-1.11(a) and 23-1.22(b) as alleged, as these Industrial Code Rules were simply not applicable to the facts of this case.

In granting TLM’s motion for summary judgment, Queens County Supreme Court Justice Darrell L. Gavrin found that the plaintiff failed to satisfy his prima facie burden of demonstrating that Labor Law 240(1) applied to the underlying accident, as “not every worker who falls at a construction site . . . gives rise to the extraordinary protections of Labor Law 240(1)” (citing Narducci v. Manhasset Bay Assoc., 96 N.Y.2d 259, 267 [2001]), and that the one-foot elevation was de minimis and not significant enough to trigger the Labor Law. Moreover, the wheeled cart was found to be at the same level as the plaintiff at the time of the accident and was not “elevated,” and the alleged harm did not flow directly from the application of the force of gravity to the object.

Justice Gavrin also granted summary judgment as against the plaintiff’s claims under Labor Law 241(6), as plaintiff failed to show that his own negligence did not play a role in the accident, and the Industrial Code provisions relied upon by the plaintiff were irrelevant and inapplicable to the instant action. More specifically, the court found that Industrial Code Rule 23-1.11(a) was inapplicable as the plaintiff himself testified that the ramp had no visible defects and had proper supports to keep the ramp in place; that Rule 23-1.22(b), which refers to “runways and ramps,” was inapplicable as the wheeled cart involved in the instant action was not a “wheelbarrow, power buggy, hand car or hand truck” as required by the rule; and that Rule 23-1.7(f) was inapplicable as there was basis to determine that the plaintiff’s activities required a means of access to “another working level,” as the ramp leading to the gantry was only approximately four to 12 inches above the roof surface.

Finally, in granting summary judgment as against the plaintiff’s Labor Law 200 claims, the court found there was no evidence that TLM exercised any supervisory control or had any input into how the plaintiff was to perform his work, or that it had created the alleged condition or had any actual or constructive notice of said condition and failed to correct it. Although there was some ambiguity in the language of the written agreement between TLM Group and 452 Fifth Owners, which required TLM to “monitor all work,” the court held that the right to generally supervise the work, stop the contractor’s work if a safety violation is noted or ensure compliance with safety regulations was insufficient to impose liability under Labor Law 200.

Carla Varriale represented TLM Group LLC.

Assumption of Risk Bars Claims Based on Alleged Crowd Crush

Lechtrecker v. Splish Splash, Festival Fun Parks, LLC, and Titan Global, LLC
Supreme Court, Suffolk Country
Index No. 061850/2013
October 7, 2016

Assumption of Risk Bars Claims Based on Alleged Crowd Crush

Plaintiff alleged that she sustained personal injuries on August 30, 2012 while a patron of Splish Splash water park and was caused to slip and fall and sustain a serious injury due to an “on rush of a massive crowd of riotous patrons as plaintiff was attempting to traverse a steeply inclined/declined pedestrian walkway.”

Plaintiff’s accident was unreported, and the defendants had no knowledge of the alleged accident. There is a countdown leading up to the opening of the park each morning and also a sign that instructs patrons “no running.” The court granted summary judgment to the defendants.

The court highlighted that the plaintiff testified that in the five years prior to August 30, 2012, she had been to Splish Splash on numerous occasions; she had a habit to try to get to Splish Splash early before the park got too crowded; she had observed the park’s opening procedures numerous times; prior to the opening of the park on the date of loss, the plaintiff and family members made their way to the front of the crowd; when the rope dropped, family members took off running, and plaintiff “took off” barefoot, to catch up to them, over a footbridge.

While the plaintiff was running, there were people all around her, but they did not restrict her ability to run. Plaintiff’s fall occurred on the downward side of the footbridge. To her knowledge, no one pushed her or contributed to her fall. Plaintiff testified that as she was attempting to push off from a jog to a sprint, there was a small rock or pebble “on the top of her foot” at the exact moment when she was pushing her weight into it. She felt something give in her leg, and she went flying to the cement. She testified that she did not see the rock or pebble prior to the accident or after it; rather, she testified that she felt it on the bottom of her foot before she fell.

Festival (which operates Splish Splash) submitted the affidavit of a crowd safety and security expert, who opined that Splish Splash management took all reasonable steps to ensure that on August 30, 2012, the opening procedure for the park was sufficiently safe and ensured orderly entry into the attractions area of the park. He further opined that, on the date of the accident, the plaintiff knowingly ran after her children, despite signage clearly warning of the dangers of running in the water park. In addition to this, the plaintiff failed to look where she was going, even though she was admittedly aware of the risk.

In a fact intensive opinion, the court held that Festival established its prima facie entitlement to summary judgment dismissing the complaint and the cross-claim against it. In a “crowd control” case, the plaintiff must show that she was “unable to find a place of safety or that her free movement was restricted due to the alleged overcrowding conditions.” Festival established, through the testimony of the plaintiff, and a nonparty witness that the plaintiff could freely move around in the crowd, and could have retreated backwards toward a less crowded part of the crowd; that the plaintiff’s decision to run in the park was not caused by the crowd, and finally, that her accident was not caused by a member of the crowd, but by the plaintiff’s own choices and action. Therefore, the plaintiff’s crowd control claim was without merit.

The court further held that Festival established a prima facie case that the plaintiff is barred from recovery under the doctrine of primary assumption of risk in that the plaintiff was aware of the risks inherent in running as the rope dropped to open the park’s attractions, having seen people injured on prior visits to the park. “Plaintiff voluntarily chose to run, and then started to sprint, in a park which she testified that she had visited numerous times, and which is replete with signs requesting that patrons not run.” Plaintiff’s testimony also revealed that her injuries were caused when she stepped on a small pebble or rock while running, as she was attempting to accelerate, causing her to injure herself, which resulted in her fall. “Thus, plaintiff voluntarily assumed the risk of injury, and in fact, her injuries were caused by her own decisions and action, and not due to any negligence on the part of Festival.”

In opposition, the plaintiff failed to raise an issue of fact.

Titan also established its prima facie entitlement to summary judgment and the plaintiff failed to establish that defendants failed to control the crowd because the plaintiff could have safely withdrawn to the rear of the crowd and found a “place of safety,” but chose not to. Titan also established that it owed no duty to the plaintiff, and it is not liable to the plaintiff as a third-party beneficiary of its contract with Festival.

Carla Varriale represented Festival Fun Parks, LLC.

Tarulli v. American Leisure Services Corp. and Board of Directors of Bayview Leisure Association, Inc.
Supreme Court, Queens County
Index No. 2329/16
October 5, 2016

Suspension of Swim and Fitness Club Membership Upheld

This action suit was originally commenced in Civil Court and arose out of the suspension and termination of the plaintiff’s membership at a private swim and fitness center. Mr. Tarulli sued for breach of contract, return of common charges paid the center, discrimination, emotional damages and loss of income opportunities, i.e. the ability to network at the club.

The Civil Court adopted all of our arguments, including that the suit was barred by the plaintiff’s execution of a Waiver of Liability and Indemnity Agreement and that the suit was barred by the terms of the plaintiff’s membership agreement.

Plaintiff waived an appeal and instead commenced a new action in Supreme Court, Queens County, slightly altering his factual allegations and the relief sought. We again moved by pre-answer motion to dismiss based upon res judicata, statute of limitations, enforceable waiver and a failure to state a cause of action against American Leisure. Judge Timothy J. Dufficy issued a scathing decision granting our motion. The action was ultimately precluded based upon res judicata and the statute of limitations applying to intentional torts. Justice Dufficy stated that the Civil Court addressed and resolved the same litigated issues in a “thorough and erudite” decision. Justice Dufficy warned plaintiff “this should be the end of the road for this lawsuit.”

Carla Varriale represented American Leisure Services Corp. and Board of Directors of Bayview Leisure Association, Inc.

Tanner v. The Orange Lake Fish and Game Association, Inc.
Supreme Court, Orange County
Index No. 9942/13
September 28, 2016

Fishing Tournament Participant’s Claim Dismissed Based on Assumption of Risk

In an action commenced on behalf of an experienced fisherman against The Orange Lake Fish and Game Association, Inc. (of which he was also a board member), the defendant’s motion for summary judgment was granted by Justice Gretchen Walsh of the Supreme Court, Orange County. The plaintiff was allegedly injured at the defendant’s Pavilion, where a fishing tournament was held, while participating in the tournament. The plaintiff slipped on wet stairs while exiting the Pavilion, injuring himself.

In support of its motion for summary judgment, the defendant argued that the plaintiff voluntarily assumed the risk of the water-related conditions he knew to define the activity and the property. The court held that the plaintiff was an experienced fisherman at the Pavilion who assumed the risk of injury by navigating wet stairs that were partially submerged in lake water. One of the risks that was known, or should have been known, to the plaintiff was the risk in losing one’s balance in descending stairs submerged in water by a lake. The court highlighted the plaintiff’s extensive knowledge and experience at the Pavilion and held that the condition of the stairs (submerged in murky water, and the absence of a handrail) was an “open and obvious” condition that required no warning to him by the defendant.

Plaintiff’s experience as a board member of Orange Lake Fish and Game also charged him personally with a duty to supervise the property, and he did not take any measures to correct what he later claimed was a “dangerous condition.” The judge also held that it was of no consequence that the plaintiff was not fishing at the time he injured himself, holding that he was still engaged sufficiently in the event (the fishing tournament) when he was injured. Lastly, the judge gave no credence to the opinions of the plaintiff’s purported construction expert, holding that there was no proof that any building codes applied or were violated.

Carla Varriale represented The Orange Lake Fish and Game Association, Inc.

Pisany v. City of New York and Bryant Park Market Events, LLC
Supreme Court, New York County
Index No. 158071/13
2016 N.Y. Misc. LEXIS 3270; 2016 N.Y. Slip Op 31711(U)
September 12, 2016

Assumption of Risk Applied to Claim of Ice Skater Collision

Plaintiff Arthur Pisany alleged that he was injured on January 27, 2013, at an ice skating rink located in Bryant Park in Manhattan after colliding with another skater when the rink became overcrowded. Plaintiff moved to strike the answer of defendant Bryant Park Market Events, LLC (BPME) or, in the alternative, for a negative inference at trial, for BPME’s alleged spoliation of video surveillance footage of the accident. Defendants City of New York and BPME moved for summary judgment dismissing the complaint.

Justice Nancy Bannon granted the defendants’ motion in its entirety and denied the plaintiff’s motion.

In granting the defendants’ motion, Justice Bannon held that the plaintiff’s action was barred based by the doctrine of primary assumption of risk. She noted that “[c]ollisions between ice skaters are a common occurrence, and thus an inherent risk of ice skating.” As the plaintiff’s accident allegedly occurred when a young skater bumped into him, causing him to fall, and the risks inherent to ice skating were “not increased above and beyond those [inherent to] ice skating,” the judge held that the plaintiff could not hold the defendants liable for his injuries.

Plaintiff’s action was also subject to dismissal as against the City because (1) plaintiff failed to appear for a statutory hearing pursuant to General Municipal Law section 50-h; and (2) the City was an out-of-possession landlord in relation to the ice rink.

Justice Bannon denied the plaintiff’s motion for spoliation sanctions as academic in light of the fact that she granted the defendants’ summary judgment motion. She did note, however, that denial was warranted regardless because the video had been deleted before the plaintiff provided notice of his intent to pursue a claim.

Carla Varriale and Shawn Schatzle represented the City of New York and Bryant Park Market Events, LLC.

Juanita Thomas v. Splish Splash at Adventureland, Inc. d/b/a Splish Splash and Festival Fun Parks, LLC
Supreme Court, Nassau County
Index No. 600287/14
July 22, 2016

Assumption of Risk Applied to Defeat Negligence Claims in Overturned Raft Case

Juanita Thomas sustained personal injuries when the multi-person raft she was riding on flipped over at the attraction known as “Hollywood Stunt Rider.” She later sued the water park,  Splish Splash at Adventureland, operated by Festival Fun Parks, LLC. At the close of discovery, defendants moved for summary judgment dismissing her action.

Although the name of the attraction, Hollywood Stunt Rider, indicated that there was a risk of injury associated with riding it, Splish Splash and Festival established that the risk of becoming separated from the raft or making contact with the wall or other aspect of the attraction was an obvious and inherent part of the attraction. They also proffered an affidavit from an expert in the analysis and reconstruction of water park accidents who performed an inspection of “Hollywood Stunt Rider” and opined the attraction was properly operated and that it had redundant means of prudent and appropriate warnings for water patrons such as plaintiff. 

Plaintiff argued that the rafts were dangerous and defective, that she as not properly supervised  and that there was an insufficient amount of water in the ride. She also claimed that she was not sufficiently warned that he could be forcibly thrown from the raft. She argued that the risks associated with “Hollywood Stunt Rider” were concealed because the ride is enclosed and not open. 

The Supreme Court, Nassau County held that plaintiff’s negligence action was barred by her assumption of the risk. As an adult who voluntarily rode Hollywood Stunt Rider, plaintiff assumed the risk inherent in that activity, including the risk that she could become separated from her raft and injured.

The Supreme Court, Nassau County held that plaintiff offered no countervailing expert opinion, no evidence of a defective and dangerous condition over and above the risk inherent in the subject activity, or evidence of any action that unreasonably increased the “clearly open and obvious risk inherent in riding on the Hollywood Stunt Rider attraction.” Therefore, the Supreme Court, Nassau County granted the summary judgment motion and dismissed plaintiff’s negligence action.

Carla Varriale represented Splish Splash at Adventureland, Inc. and Festival Fun Parks, LLC.

Nielson v. Vornado Forest Plaza LLC
Supreme Court, New York County
Index No. 160372/2013
July 7, 2016

Injured HVAC Maintenance Worker’s Labor Law §§ 240(1) and 241(6) Claims Dismissed On Summary Judgment as Work Performed was Deemed Routine Maintenance and Did Not Qualify as an Activity Covered Under the Labor Law

George Nielsen was allegedly injured when he fell from an interior ladder leading to the roof of a Planet Fitness gym located in Staten Island, New York. Mr. Nielsen – a heating, ventilation and air conditioning (“HVAC”) technician – was at the gym to perform routine maintenance on its rooftop HVAC units, in conjunction with a written maintenance contract. He successfully ascended the ladder and opened a roof hatch in order to gain access to the roof, leaving the hatch open behind him. It then began raining. While inspecting the units prior to performing his maintenance work, he observed that the inducer motors in two of the units were not turning on. He then sought to obtain a testing device from his truck in order to determine what, if anything, was wrong with the motors. Mr. Nielsen slipped and fell while descending the interior ladder, the rungs of which were wet due to the fact that he had left the roof hatch open while it was raining. He allegedly sustained injuries to numerous body parts, including his neck, requiring two cervical spine surgeries. He also claimed to have been rendered permanently unable to work.

Mr. Nielsen thereafter commenced suit against Planet Fitness, among other defendants, alleging that the ladder and the hatch were defective or otherwise contained insufficient safety measures, such as non-slip tape on the ladder’s rungs, thereby causing his accident. He asserted that Planet Fitness was liable under a theory of common law negligence, as well as under the provisions of Labor Law §§ 200, 240(1) and 241(6).

At the close of discovery, HRRV moved for summary judgment on behalf of Planet Fitness, seeking dismissal of Mr. Nielsen’s Labor Law and negligence action. In particular, HRRV sought dismissal of his claim pursuant to Labor Law § 240(1), which serves to protect workers from certain height-related accidents and does not allow for a plaintiff’s comparative negligence to be considered when awarding damages once a statutory violation has been established. HRRV argued that Mr. Nielsen’s work at the time of the accident was mere routine maintenance, which did not qualify as an activity covered by § 240(1), such as building repair or alteration. HRRV argued that the fact that he was in the midst of going to his truck to obtain a testing device to determine what the issue with the motors was did not transform his routine maintenance work to repair work, as one could draw a bright line between the two types of work. This argument was supported by the fact that Mr. Nielsen did not have the equipment needed to repair or replace the motors on his truck, even if he had been able to diagnose the issue with the motors. HRRV also argued that the work Mr. Nielsen would have potentially performed to replace the motors if his accident had not occurred was relatively simple and easy, such that it could not possibly have qualified as repair work. In support of this latter argument, HRRV submitted the Affidavit of David Bruhns, P.E., an expert in HVAC systems, who opined as to the specific work involved in replacing motors such as those at issue.

Additionally, HRRV argued that Mr. Nielsen’s Labor Law § 241(6) claim against Planet Fitness was subject to dismissal because only work involving construction, excavation or demolition is covered under the statute, and the work at issue clearly fell into none of those categories. HRRV also argued that the Industrial Code provisions alleged by Mr. Nielsen to support his § 241(6) claim were either too general to establish a statutory violation or irrelevant to the facts of the case, and that alleged violation of regulations promulgated by the Occupational Safety and Health Administration (“OSHA”) could not support a claim under the statute.

Justice Arthur Engoron of Supreme Court, New York County, issued an Order dismissing Mr. Nielsen’s Labor Law §§ 240(1) and 241(6)claims. The court held that Mr. Nielsen’s routine maintenance work did not qualify for the protection of § 240(1) as a matter of law. He agreed with HRRV that that there was a bright line separating Mr. Nielsen’s work at the time of the accident, which qualified as routine maintenance, from the potential repair work that may have been necessary if he had been able to diagnose the issue with the motors. In dismissing Mr. Nielsen’s § 241(6) claim, Justice Engoron again agreed with HRRV, holding that the Industrial Code provisions alleged were not sufficiently specific or were wholly inapplicable to the facts of the case. The court also held that violations of OSHA regulations could not support a claim under the statute, thereby warranting dismissal of Mr. Nielsen’s § 241(6) claim.

Carla Varriale and Shawn Schatzle represented Planet Fitness.

Hackett v. City of New York
Supreme Court, Bronx County
Index No. 0301370/2011
July 5, 2016

Application of Storm in Progress Rule Results in Dismissal of Action Against Property Owner

Annabell Hackett alleged that she slipped and fell on the sidewalk abutting the premises located at 476 East 187th Street, New York, New York and that the defendants, The City of New York and Alan Rena Realty Corp. were negligent in that they created a slippery condition by allowing ice and snow to exist on the sidewalk abutting the premises. The incident was alleged to have occurred during the historic blizzard of 2010. The plaintiff underwent an open reduction internal fixation surgery. Plaintiff's settlement demand was $850,000. Both defendants moved for summary judgment and the court dismissed all claims .

The City of New York moved for summary judgment on the grounds that, pursuant to the Sidewalk Law, the City is exempt from liability for failure to remove snow and ice provided no voluntary snow removal efforts created or exacerbated a hazardous condition. Plaintiff attempted to oppose the motion by submitting the affidavit of an expert in response to the motion. The Court, in the exercise of its discretion, declined to consider the affidavit in that it was not disclosed previously. The Court also noted that had it considered it, it was lacking in probative value and the witness did not qualify as an expert. The expert's opinions were also too speculative to create a question of fact (i.e. that the City's snow removal must have created an improper pathway), and therefore the City's motion was granted.

HRRV moved on behalf of Alan Rena Realty, the property owner, and argued that there was a "storm in progress" which suspended the property owner's duty to take reasonable measures to remedy a dangerous condition, and that the insured did nothing to create a hazardous condition. HRRV showed that the area had been last inspected at 6 am, the area was clear, and it did not need to shovel because the snow had stopped.

There was, however, an inconsistency in the evidence. A non-party witness stated that he was present at 7 am and there were mounds of snow, spilling onto the sidewalk, with an 18 inch pathway. Additionally, there was new accumulation over the shoveled path, indicating heavy snowfall. He also discussed a thick patch of ice which had melted and re-frozen. Plaintiff also described patted down snow, and ice, over the pathway, without any salt or sand. The court explained that the owner could only be held liable if its snow removal efforts were not done with reasonable care. Here, the court found that the owner's efforts were "at worst, incomplete." There was no evidence to establish that the owner made the area more hazardous or dangerous by those efforts. Thus, the claims were dismissed.

Tara C. Fappiano and Tiffany Fendley represented Alan Rena Realty Corp.

Johnson v. 675 Coster Street Housing Development Fund
Supreme Court, Bronx County
Index No. 301361/2012
June 15, 2016

Plaintiff's failure to identify any alleged defect in the premises causing his fall leads to granting of summary judgment in favor of defendants.

Oliver Johnson filed a complaint in Supreme Court, Bronx County, seeking damages arising out of an incident that allegedly occurred on January 6, 2011. Mr. Johnson alleged that he was caused to be injured at the premises located at 675 Coster Street, Bronx, New York when he slipped and fell on a stairway, due to a dangerous and defective condition. More specifically, plaintiff alleged that while descending the stairs between the third and second floors of defendants' building, his right foot slipped out from under him as he was nearing the second floor. The building was owned by defendants 675 Coster Street Housing Development Corporation (HDFC) and managed by PWB Management.

The defendants moved for summary judgment on the grounds that the plaintiffs failed to identify the alleged defect in the defendants' premises that caused his fall. Under the common law, a landowner has a duty to maintain his or her property in a reasonable safe condition, and liability for a dangerous condition requires proof that either the owner created the condition, or, that he had actual or constructive notice of a dangerous condition. Piacquadio v. Recine Realty Corp., 84 NY 2d 967, 969 [1994].

In support of their motion, defendants' submitted plaintiff's deposition testimony, wherein plaintiff acknowledged that he did not know what allegedly caused his fall until after the fact. In opposition, plaintiff submitted an affidavit which mirrored the words and description of the defective condition as described by his expert.

The court found that the affidavit by the plaintiff was an attempt to add additional defects never before mentioned, and was made to tailor his version of the facts to meet the defects alleged, but not shown by his expert's affidavit, report, or photographs. As the plaintiff did not attribute his fall to any defects which might be been afflicting the stairs as determined by his expert, the court held that the defects were not the proximate cause of plaintiff's accident.

Accordingly, defendants' motion for summary judgment was granted it its entirety. Plaintiff's settlement was demand had been $350,000.

Tara C. Fappiano represented the defendants 675 Coster Street Housing Development Corporation and PWB Management.

Jeremiah Cullen v. AT&T
Supreme Court, Oneida County/Appellate Division, Fourth Department
Index Number 13610/2009/Appellate Division No: CA 15-01563
June 10, 2016

Appellate Division, Fourth Department Reverses Trial Court  and Reinstates Plaintiff’s Labor Law §240(1) Cause of Action

In Jeremiah Cullen v . AT&T Inc. and American Tower, L.P. (“American Tower”), the Appellate Division, Fourth Department reversed the Order of the Supreme Court, Oneida County, which granted the plaintiff’s motion for partial summary judgment against the defendants on his Labor Law §240(1) cause of action and held that there were questions of fact whether the defendants violated Labor Law §240(1).

The plaintiff alleged that his accident occurred on January 20, 2012 at a cellular telephone site located at 3181 Southwest Boulevard, Orchard Park, New York.  American Tower owned the cellular telephone tower and leased a portion of it to New Cingular Wireless PCS, LLC, incorrectly sued herein as AT&T Inc. (“New Cingular”).  New Cingular’s management company, CBRE, then hired the plaintiff’s employer, WesTower Communications (“WesTower”), to perform maintenance work at the location.  The plaintiff claims that while working as a climber for WesTower, he “had to utilize slings to pull himself up in the course of repairing the TMA box . . . .[when] [h]e slipped and fell downward until jerked to a stop.”   A TMA box, otherwise known as a tower mounted amplifier, amplifies and receives the signal that the cell phone tower receives.  The plaintiff claims he injured his right and left shoulders, right and left arms and biceps, neck and back in the accident. 

The Supreme Court, Oneida County denied the defendants’ motion for summary judgment to dismiss the plaintiff’s Labor Law §240(1) cause of action and instead granted Plaintiff’s cross-motion for partial summary judgment. The trial court summarily determined that because Labor Law §240(1) requires that “the defendant must provide proper safety equipment as to give proper protection to the person performing such work” and “if the plaintiff used the equipment as instructed, which is what the evidence shows, then the Court cannot say that the equipment was proper equipment to provide the proper protection for the plaintiff.”  In other words, the lower court determined that because Labor Law §240(1) requires that proper equipment be provided to the worker and because the plaintiff was injured while using the equipment that was provided, it must mean that proper equipment was not provided.  

On appeal, New Cingular and American Tower argued that they demonstrated through the only admissible evidence in the case that the plaintiff was provided with proper and adequate safety equipment at the time of his accident. Thus, they posited that the Supreme Court erred in denying their motion for summary judgment and at the very least, they demonstrated that questions of fact existed as to whether proper and adequate safety equipment was provided and, thus, the lower court also erred in granting the plaintiff’s motion for partial summary judgment.  Specifically, the defendants demonstrated through the testimony of WesTower’s safety manager and the defendants’ tower climbing safety expert that the equipment provided to the plaintiff, which included synthetic chokers cables was adequate to perform the work. 

The Appellate Division reversed the Supreme Court’s decision and stated in its decision that:

[T]here are issues of fact whether the safety devices provided proper protection, and whether the absence of additional safety devices provided proper protection, and whether the absence of additional safety devices was a proximate cause of plaintiff’s injuries . . . . In opposition to plaintiff’s cross-motion [for summary judgment], defendants submitted an expert affidavit sufficient to raise an issue of fact whether the safety devices provided to plaintiff were adequate for his work.   . . . Although the deposition testimony of plaintiff and his coworker and the affidavit of plaintiff’s expert indicated that additional safety devices should have been provided, we conclude that the conflicting opinion of defendants’ expert raises an issue of fact whether the absence of other safety devices proximately caused plaintiff’s injuries.

Stanton v. Oceanside Union Free School District
Supreme Court, Nassau County
Index No.: 1925/12
June 1, 2016

Appellate Division Deflates Spectators’ Airborne Bouncy House Claims

Multiple lawsuits, ultimately consolidated, were commenced against the Oceanside Union Free School District, The Oceanside United Soccer Club and the Eastern New York Youth Soccer Association, Inc., seeking recovery for injuries allegedly sustained at the Soccer Club’s annual year-end soccer festival, which took place at the Oceanside Middle School athletic field, when several inflatable rides were caused to become airborne due to a high, unpredictable gust of wind. The airborne inflatable rides then came into contact with the plaintiffs, who were spectators at the event. The school athletic fields were owned by the defendant Oceanside Union Free School District. The Soccer Club obtained a permit to use the school athletic field for the limited purpose of holding its year-end soccer festival there. The Soccer Club rented inflatable rides used at the festival from the defendant Affordable Inflatables and Party Rentals, Inc., which also delivered the inflatable rides, set them up, and staffed them.

The defendants’ motion for summary judgment was denied by the Supreme Court, Nassau County which found that there were issues of fact as to: (1) whether The Oceanside Union Free School District and Soccer Club breached their “non-delegable common law duties” to maintain the premises in a reasonable safe condition for the public and to those persons invited to the premises; (2) whether the defendants directed the manner or method of securing the inflatable rides; and (3) whether an indemnification clause, which allegedly required the Soccer Club to indemnify Affordable Inflatables for any liability arising from the incident was enforceable.

On appeal, the Appellate Division, Second Department unanimously reversed the denial of summary judgment, holding that the Soccer Club was entitled to summary judgment dismissing all claims and cross-claims against it, based primarily on the general rule, that one who hires an independent contractor may not be held liable for the negligent acts of the independent contractor.  While the Court recognized the non-delegable duty exception to the independent contractor rule where the party is under a duty to keep premises safe, the Court determined that the Soccer Club was a licensee, not exercising control over the school’s premises, and thus owed no such duty to the plaintiffs. In opposition to the Soccer Club's prima facie showing of entitlement to summary judgment, the plaintiffs and the other defendants failed to raise a triable issue of fact.

The Court further held that the Oceanside School District also was entitled to summary judgment dismissing all claims and cross claims asserted against it. “The School District established, prima facie, that it did not create or have actual or constructive notice of the alleged dangerous condition” and “in opposition, the plaintiffs and the codefendants failed to raise a triable issue of fact.”

Lastly, the Court held that the Soccer Club was entitled to summary judgment dismissing the cross claims for contractual indemnification asserted against it by Affordable Inflatables. While the Court was mindful of the principle that a contract that provides for indemnification will be enforced as long as the intent to assume such a role is sufficiently clear and unambiguous, the Court determined that any intent for the Soccer Club to assume the role of indemnifying Affordable Inflatables was not sufficiently clear and unambiguous, based upon the language of the agreement. No triable issue of fact was raised in opposition.

Carla Varriale and Lindsay Kaplow represented the Oceanside United Soccer Club, the Eastern New York Youth Soccer Association, Inc., and the Oceanside Union Free School District. 

Biondo and Candino v. NYSPHSAA, Inc.
Supreme Court, Erie County
Index No.: 1443/12
May 19, 2016

Herpes Gladiatorum Claims By High School Wrestlers Dismissed Based on Assumption of the Risk

In two separate actions commenced on behalf of high school wrestlers stemming from the same wrestling tournament in February 2011, the defendants’ motions for summary judgment were granted by Justice Diane Devlin of the Supreme Court, Erie County. The plaintiffs alleged that they had contracted herpes gladiatorum and MRSA from another wrestler while competing in a wrestling tournament at Starpoint High School, sponsored and coordinated by Section VI of the NYSPHSAA. Plaintiffs brought the lawsuit against Section VI of the NYSPHSAA and NYSPHSAA, Inc., as well as several School Districts, a tournament physician, the high school wrestler from whom plaintiffs alleged they contracted the communicable skin diseases, the wrestler’s parents and his primary case physician.

In support of their motion for summary judgment, defendants argued that the plaintiffs’ assumption of the inherent, obvious risks of contracting communicable skin diseases including herpes gladiatorum and MRSA while wrestling, notwithstanding their awareness that they could generally contract communicable skin diseases (but denial of being aware of the risk of contracting herpes), negated defendants’ putative duty of care. In arguing that communicable skin diseases, including herpes, are an inherent risk of the sport of wrestling, HRRV highlighted the persuasive case law of Farrell v. Hochhauser, 65 A.D.3d 663, 884 N.Y.S.2d 261 (2d Dep’t 2009), the expert opinion defendants’ wrestling and medical expert, Dr. BJ Anderson – which went unrefuted in opposition, as well as the testimony of the plaintiffs, given their admissions of their awareness of contracting certain communicable skin diseases in wrestling.

Defendants presented the similarities between the plaintiffs’ claims and those advanced in the Farrell case, which in sum held that wrestlers assume the risk of contracting herpes gladiatorum, an inherent risk in the sport. Moreover, defendants demonstrated how each plaintiff must be held to assume the risk of contracting herpes gladiatorum, based upon the plaintiffs’ testimony, their age, experience, skill and knowledge.

Defendants further argued that the defendants had abided by the National Federation of High Schools Rules for Wrestling, in that the suspected student wrestler ruled out a contagious skin disease by using the mandatory Communicable Skin Disease Form, completed by a medical practitioner and reviewed by an on-site physician at a wrestling tournament – as a result of which he was permitted to wrestle.

In opposition, plaintiffs contended that defendants failed to warn plaintiffs of the specific risk of contracting herpes, even though record evidence is to the contrary. They also contended that herpes is in a “different class” of communicable skin diseases and should not be grouped together with the more common communicable skin diseases of ringworm and impetigo, usually associated with wrestling. On reply, defendants pointed out the inconsistencies in plaintiffs’ arguments and argued that the lack of a medical or liability expert to support plaintiffs’ contentions is fatal to their arguments. Upon hearing argument and reviewing all motion papers, the court granted summary judgment to all defendants – based upon the doctrine of assumption of the risk, the Appellate Division, Second Department’s holding in Farrell, the lack of an expert opinion proffered by plaintiffs, and the absence of a duty of care.

Carla Varriale represented Section VI of the NYSPHSAA and the NYSPHSAA, Inc.

Priola v. Herrill Bowling Corp. d/b/a Herrill Lanes
Supreme Court, Nassau County
Index No. 600507/2014 
March 15, 2016

Summary Judgment Granted in Favor of Bowling Alley Dismissing Lane Fall Claim

Plaintiff, who was bowling with her usual Tuesday league at defendants bowling alley, claimed that her foot became stuck to the wooden floor of the approach while she was about to release her ball into the lane. Plaintiff fell forward into the lane.

In sum, the court held that defendant Herrill met its initial burden on moving for summary judgment, which is to tender some evidence establishing that it maintained its property in a reasonably safe manner and did not have notice of or create a dangerous condition posing a foreseeable risk of injury.

Seizing on plaintiff's inability to identify precisely what caused her to fall, the court held that "when a defendant demonstrates that a plaintiff does not know what caused her to fall, defendant has established its entitlement to summary judgment as a matter of law. Causation cannot be based in speculation." An interesting side note to the decision is that the court considered the affidavit submitted in opposition to the motion of plaintiff's expert engineer, even though the court had the discretion not to consider it because the expert had not been disclosed prior to the motion. Notwithstanding the expert’s opinion, the court held that plaintiff failed to meet her burden to raise a triable issue of fact.

Steven H. Rosenfeld represented the defendant.

Courboin v. Scott
United States District Court for the District of New Jersey
Civ. No. 15-cv-2639 (KM)
March 3, 2016

Federal Court Dismisses RICO/Sherman Act Case Against Appraisal Company Based on Plaintiff’s Apparent Dissatisfaction with Divorce Trial

Plaintiff alleged violations of the federal Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §1961, et seq. and the Sherman Act of 1890, against all defendants. The claims were based on plaintiff’s apparent dissatisfaction with the outcome of his previous divorce trial, which was held in New Jersey Family Court in 2009. As to defendants Arthur J. Smith and Arthur J. Smith Appraisals, LLC, plaintiff’s allegations of wrongdoing stemmed from an appraisal of plaintiff’s marital residence performed for plaintiff’s counsel in plaintiff’s divorce proceeding. Plaintiff alleged that the Smith defendants charged $550 for the appraisal, $200 more than New Jersey Appraisals, Inc. (a competing appraiser) apparently charged to appraise the same property. Plaintiff further alleged that the Smith Defendants used “illegal, antique” forms for the appraisal and that the New Jersey Yellow Pages did not contain a listing for its company. 

The Court dismissed the case as against the Smith defendants based on lack of jurisdiction and failure to state a claim. The Court based its decision largely on the Rooker-Feldman doctrine in which lower federal courts cannot entertain federal claims previously adjudicated in state court or inextricably intertwined with a state court action. Here, plaintiff’s claims that his ex-wife’s attorneys retained experts for trial at exorbitant rates depleting the marital estate were found to be inextricably intertwined with the state divorce proceedings. Further plaintiff previously asserted very similar claims in a prior New Jersey state court action. Lastly, there was no basis for plaintiff’s civil RICO and Sherman/Clayton Act claims.

Francis v. Grace Lanes d/b/a Jib Lanes
Supreme Court, Queens County
Index No. 10119/2014
February 19, 2016

Summary Judgment Granted to Bowling Center Against Claims of Negligent Security and Failure to Warn

Tamara Francis commenced an action for personal injuries she sustained while at the defendant’s bowling center. An unruly patron, who had been escorted out of the bowling center earlier by the Jib Lanes security guard, had returned to the premises and began firing gun shots in the parking lot. Upon hearing gun shots, patrons began to scatter throughout the premises to take safety. Francis alleged that she was directed by a Jib Lanes employee to hide in a utility closet. While hiding in the closet, Francis purportedly stepped in an open drainage hole, injuring her leg. Francis alleged that Jib Lanes was negligent in failing to provide adequate security at the premises, and in failing to warn of the allegedly defective drainage hole in the utility closet.

Jib Lanes moved for summary judgment, arguing that it satisfied all duties owed to plaintiff. It was argued that not only does the shooting constitute a sudden and unforeseeable criminal act by a third-party, for which Jib Lanes cannot be held liable, but the evidence confirms that Jib Lanes provided adequate security and satisfied its duty to intervene by ejecting the unruly patron in the first instance. It was further argued that plaintiff cannot maintain a negligence claim against Jib Lanes based upon her stepping into the open drainage hole in the utility closet, since the utility closet is not an area accessible to patrons under normal circumstances.

Justice Timothy J. Dufficy, sitting in Supreme Court, Queens County, agreed, holding that Jib Lanes had put forward a prima facie showing of entitlement to judgment as a matter of law by submitting evidence demonstrating that the bowling alley operator did not have the ability or opportunity to control the conduct of the shooter in the parking lot. Justice Dufficy reasoned that: (i) the shooter had been removed from the premises by alley security guards and then suddenly began shooting; (ii) the bowling alley manager testified that there had been no other incidents of this nature at the bowling alley; (iii) the bowling alley employee's suggestion that plaintiff hide in the closet was characterized as an immediate response to emergency situation. The Court concluded that under the unusual circumstances of this case, the factual scenario was too attenuated and unforeseeable to hold the bowling alley liable, and awarded Jib Lanes summary judgment, dismissing plaintiff’s Complaint in its entirety.

Steven H. Rosenfeld represented the defendant.

Frassinelli and Conti v. 120 East 73rd Street Corp.
Appellate Division, First Department
Index No. 118093/2009
February 9, 2016

Denial of Summary Judgment on Boiler Case Reversed

Plaintiff alleged that she sustained burn injuries while inside an apartment she had rented for a few weeks in Manhattan, while on holiday from Italy. 120 East 73rd Street, Inc., and Ocram, Inc. owned and managed the building. The claim was that there was a failed mixing valve, which caused a hot water surge in the building, right as plaintiff was taking a shower. Plaintiffs also alleged that the bathroom and bathroom fixtures were negligent designed and maintained. 120 East 73rd Street, Inc., and Ocram, Inc. moved for summary judgment in the lower court. Despite finding that the moving defendants met their prima face burden, the lower Court denied the motion. The Court found that there was a question of fact about the moving defendants’ maintenance procedures of the boiler and such could be seen as “creation” of a hazardous condition, and also gave credence to plaintiff’s expert opinion about some inapplicable codes. The Court granted summary judgment to the boiler inspection company, while at the same time stating that there was a question of fact about whether the actual inspector was properly licensed to do the inspection. The Court went on to say that this spoke to whether the building was maintained properly.

120 East 73rd Street, Inc., and Ocram, Inc. appealed the Court’s decision to the Appellate Division, First Department. After hearing oral argument on the appeal, the First Department granted the defendants’ motion for summary judgment, and dismissed all claims against 120 East 73rd Street, Inc., and Ocram, Inc. The Appellate Division held that 120 East 73rd Street, Inc., and Ocram, Inc. established entitlement to judgment as a matter of law, by submitting evidence that the boiler system was regularly inspected, and that there was no prior notice of fluctuating water temperatures. Plaintiffs failed to raise a triable issue of fact.

The First Department explained that plaintiffs’ reliance on the 1968 NYC Building Code and 2008 NYC Plumbing Code was misplaced, since the building was not subject to these codes. There was also no proof that the bathroom was negligently designed. The Court also held that plaintiffs’ experts opinions were conclusory and insufficient to raise a triable issue of fact. The Court did affirm the dismissal of the claims against the boiler company, because, as all parties agreed, there had been no problems with the boiler in the month between when it did an inspection, and the time of the accident. Also, plaintiffs’ expert did not actually point to any defect in the valve that actually caused the temperature fluctuation.

Tara C. Fappiano represented 120 East 73rd Street, Inc., and Ocram, Inc.

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