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HRRV in the Courtroom

Kalafatis v. Royal Waste Services
Supreme Court, Kings County
Index No. 24610/2007

HRRV Secures Dismissal for Client in Catastrophic Brain Injury Case

Utilizing aggressive discovery techniques and motion practice, HRRV attorneys scored a major victory for their client facing high exposure in a trucking accident that left the plaintiff in a coma and with severe brain injuries. In Kalafatis v. Royal Waste Services, the plaintiff, a passenger in a freshly stolen vehicle, was fleeing from an unmarked police unit in Brooklyn, New York, during the early hours of November 3, 2008. During the pursuit, the plaintiff’s car ran a red light at an intersection and ultimately collided with our client’s commercial garbage truck, which was crossing the thoroughfare. After impact, the stolen vehicle continued off the intersection and smashed into the stone wall of a house. The driver of the stolen vehicle, who was never apprehended, fled on foot leaving the plaintiff and another passenger in the stolen car. The other passenger died, and the plaintiff sustained severe brain damage that left him in a coma for months and permanently disabled with substantial cognitive and neurological damage.

With the owner of the plaintiff’s vehicle having limited insurance coverage, HRRV’s client was marked as the target of the litigation with “deep pockets.” Moreover, under New York’s joint and severable liability rules, the plaintiff only needed to prove 1 percent negligence against our client to collect significant damages.

HRRV attorneys aggressively investigated the accident by deposing police witnesses, searching the plaintiff’s extensive criminal history, analyzing the vehicles’ GPS records, and searching for street videos from nearby locations. After assembling a forensic reconstruction of the incident that exonerated the client’s driver, HRRV moved for dismissal of the case. After extensive motion submissions and heated oral argument, HRRV’s diligence paid off when Justice Bert Bunyan granted summary judgment finding no issues of fact as to how the driver operated truck and dismissed the case with prejudice.

Sean P. Dwyer and Amol Christian represented Royal Waste Services, Inc.

Shaw v RPA Assoc., LLC
Appellate Division, Second Department
2010 N.Y. Slip Op 06238
July 27, 2010

Appellate Court Sustains Dismissal Holding that Labor Law § 200 Was not Violated Since the Defendants Did Not Exercise Supervisory Control

Plaintiff Fredric Shaw, a construction worker employed by third-party defendant, Rockbusters, allegedly sustained injuries during the scope of his employment while in the process of operating his dump truck to build a roadway leading to and from a construction site. At the time of the accident, the plaintiff was being directed by a fellow Rockbusters employee. The plaintiff commenced the action against AVR Realty, RPA Associates, and Patriot Ridge, owners and construction managers, alleging that they violated Labor Law §§ 200, 240(1), and 241(6)

The Supreme Court, Westchester County, granted the defendants’ motion for summary judgment and dismissed the plaintiffs’ claims in their entirety. The plaintiffs appealed, and the Appellate Division, Second Department affirmed, holding that Labor Law § 200 was not violated since the defendants did not exercise supervisory control over the operation and the methods in which the dump truck was being operated.

The Court further found that defendants established, prima facie, that no liability attaches pursuant to Labor Law § 240(1) because Shaw’s accident did not result from an accident arising as a result of a fall from a height or an object being hoisted.

Finally, the Court, in affirming the dismissal of the plaintiffs’ Labor Law §241(6) claim, that the plaintiffs failed to allege a breach of a specific regulation of the Industrial Code, noting that the plaintiff alleged on a violation of a regulation promulgated by the Occupational Safety and Health Administration.

Steven H. Rosenfeld and Carmen A. Nicolaou represented the defendants/third-party plaintiff.

Smith v. City of New York
Supreme Court, New York County
Index No. 117109/07
July 12, 2010

Decision Granting Summary Judgment to Summer Day Camp Upheld in Denying Plaintiffs’ Motion to Renew and Reargue

The Supreme Court, New York County held, in a prior decision, that infant plaintiff Isaiah Smith who was enrolled as a camper with Young People’s Day Camp (YPDC) at the time of the alleged accident, voluntarily assumed the risks inherent in playing on a set of monkey bars which gave rise to an injury. The court also held that there were no questions of fact as to whether YPDC negligently supervised Isaiah, given he knowingly assumed the risk of injury while playing on the monkey bars.

The plaintiffs moved to renew and reargue the decision, in large part, based upon the issuance of a subsequent decision by the New York Court of Appeals, Trupia v. Lake George Cent, School Dist., 14 N.Y.3d 392, 927 N.E.2d 547, 901 N.Y.S.2d 127 (2010). In taking the Trupia decision into consideration, the court denied the plaintiffs’ motion to renew and reargue.

Of significance, the court held that Trupia does not represent a change in the law which alters the result of the underlying decision. Notably, the court held that Trupia limited the application of the doctrine of assumption of risk but held that it still applied to “athletic and recreative activities.” The court further held that there are distinctions between Trupia and the instant matter, most notably, that the activity of sliding down a banister (the subject activity in Trupia) materially differs from the infant plaintiff’s actions of playing on a jungle gym, in particular monkey bars. The instant matter “involves the very kind of activity the Court of Appeals deemed socially worthy and thus one in which the assumption of risk may apply. Playing on monkey bars is precisely the type of ‘recreative’ activity the Court held was worthy of protection. The monkey bars exist for children to play on, and plaintiff was using them as intended when he was injured.” As such, had the court been able to take Trupia into consideration at the time it decided the underlying summary judgment motion, it would have been decided the same way.

Carla Varriale and Gregg Scharaga represented the City of New York and the Di Gennaro Family YPDC LLC d/b/a Young People’s Day Camp of Brooklyn.

Nolasco v. Splish Splash at Adventureland, Inc.
Appellate Division, Second Department
2010 NY Slip Op 5742
June 29, 2010

Appellate Division Cites “Plain Common Sense” in Affirming Dismissal of Negligence Action Arising from Diving Accident At Water Park

New York’s  Appellate Division, Second Department affirmed the decision of the Supreme Court, Queens County  which had granted defendants’ motion for summary judgment in a  negligence action arising out of a diving accident at a popular water park.

Plaintiff alleged that he was riding in a raft on the attraction known as “Hollywood Stunt Rider” at the Splish Splash water park located in Riverhead, New York, when he suddenly dove headfirst out of his raft into a shallow pool. As a  result, he sustained serious personal injuries. Plaintiff commenced a negligence action and alleged that defendants were negligent in allowing a dangerous and defective condition to remain on their premises which caused his injuries.  Specifically, he claimed that he was not warned or made aware of the depth of the water and that had he known the depth of the water, he would not have dove headfirst at the conclusion of the ride.

The defendants moved for summary judgment contending that they neither owed nor breached a duty of care to plaintiff based on his assumption of a known or obvious risk. Defendants established that plaintiff’s own reckless conduct was the  proximate cause of plaintiff’s injuries and not any action of defendants.  In support of their motion, defendants submitted plaintiff’s deposition testimony, as well as the testimony of several non-party witnesses who were riding the attraction with plaintiff at the time of the alleged accident. The testimony established that plaintiff suddenly and unexpectedly stood up and dove headfirst out of his raft into the shallow “run out” area at the end of the ride.  The defendants also submitted deposition testimony of Splish Splash personnel and evidence confirming the signage and instructions provided at the ride in question. In addition, the rafts contained conspicuous printed warnings prohibiting diving and there were depth markings in the run out area regarding the water depth – each of which plaintiff denied observing. 

The Supreme Court, Queens County held that defendants established that plaintiff assumed the risk of diving into a shallow pool. The court held that, “summary judgment is an appropriate remedy in swimming pool injury cases when from his ‘general knowledge of pools, his observations prior to the accident, and plain common sense’ [Smith v. Stark, 67 N.Y.2d 693, 694 (1988)] the plaintiff should have known that, if he dove into the pool, the area into which he dove contained shallow water and, thus, posed a danger of injury.”  Sciangula v. Mancuso, 204 A.D.2d 708 (2d Dept. 1994).  The court held that given plaintiff’s familiarity with amusement parks and the activity of diving into water, he was able to appreciate the risk associated with diving into shallow water.  Furthermore, the court held that although plaintiff might not have observed the posted warning signs or heard the audio warnings, such was not the proximate cause of plaintiff’s injuries.

The Appellate Division, Second Department affirmed the Supreme Court decision, agreeing  that defendants had satisfied their burden by demonstrating that plaintiff’s own actions were the sole proximate cause of his injuries. Noting plaintiff’s prior experience with swimming and diving, the audio and visual warnings advising of the depth of the water and the express warnings against diving, as well as “plain “common sense,” the Appellate Division determined that plaintiff should have known that if he dove into the pool, he the area into which he dove contained shallow water and, thus, posed a danger of injury.

Carla Varriale and Hilary Levine represented the defendants.

Miriam Richards v. 2160 Realty Co., LLC
 Supreme Court, Bronx County
Index No.: 021685/04
June 24, 2010

Grant of Summary Judgment to Defendant on a Premises Liability Case

Miriam Richards sought money damages for severe personal injuries that she allegedly sustained in a residential apartment building located in the Bronx. At the time of the incident, Ms. Richards was employed as a home health care aide and was seeing clients in the building.  She testified that upon entering the building earlier in the day, she did not notice any problem with the stairs but claimed that the stairs were typically dirty and strewn with garbage.  Several hours later, as she was leaving the building, she allegedly slipped on a greasy substance located on one of the stairs and fell down, sustaining personal injuries including a tear of the right knee medial meniscus and the supraspinatus tendon of the right shoulder, both of which required surgical repair.  She also claimed a litany of other conditions including suicidal ideations and that her injuries caused her to sustain a second fall several months later, resulting in a fractured hand.

The building’s superintendent testified that on a daily basis, he would sweep and mop the stairs in the building in the morning and then periodically check them every two hours for dirt and debris.  He had most recently checked the stairs only a couple of hours before the accident and did not notice any grease. 

During discovery, the defendant achieved an early victory by obtaining a preclusion order which prevented the plaintiff’s alleged notice witness, who was never produced to testify.  None the less, the plaintiff sought to establish liability via a general negligent maintenance argument.  Employing established case law, including the important case of Rivera v. 2160 Realty Co., LLC., 4 N.Y.3d 837, 797 N.Y.S.2d 369 (2005), in which the Court of Appeals dealt with a nearly identical fact pattern involving similar claims in the very same building, HRRV argued that the plaintiff entirely failed to establish that the defendant had notice of the specific condition which was alleged to have caused the plaintiff’s fall.  Put simply, there was no testimony indicating how long the grease was present on the stair on which the plaintiff allegedly slipped.

Justice Geoffrey D. Wright considered the evidence, including the plaintiff’s argument that the stairs in the building exhibited a recurring condition, and reasoned, however, that such an argument required facts indicating that the defendants did not make any clean up efforts.  Without those facts, the court was able to determine, as a matter of law, that there was no merit to the plaintiff’s negligent maintenance argument.  Accordingly, the court dismissed the plaintiff’s complaint in its entirety.

Jonathan Judd and Mark J. Volpi represented the defendant.

Lena Faulkner v. Tampa 142, LLC, et al
Supreme Court, New York County
Index No. 116291/07
June 18, 2010

Court Holds that an Issue of Fact Exists as to Whether a Building Owner or Its Commercial Tenant Was Responsible to Make Sidewalk Repairs

Plaintiff Lena Faulkner allegedly sustained injuries on September 17, 2007, when she tripped and fell on an alleged defective condition on the sidewalk abutting the premises located at 160 West 142nd Street, New York, New York. The building owner, Tampa 142, LLC (Tampa), subsequently filed a third-party action against defendants Watermill Family Corp. and Soo Family Corp. (Watermill), which leased the sole commercial space at the subject premises.

Watermill filed the instant motion and pointed to Paragraph 4 of the subject lease, which provided that the tenant was required to make “all non-structural repairs” to the sidewalk. Watermill argued that the crack on the sidewalk was “structural” in nature. Watermill also pointed to Paragraph 15 of the Rider of the Lease, which provided that “tenant shall be required to make repairs to sidewalk or curb in front of the premises as deemed necessary by violation from the City of New York. If said repair is not made and the cost is not paid by Tenant within 60 days of notice, Landlord may make the repair and the cost shall be paid by Tenant as part of Tenant’s basic rent.” Watermill argued that it received no notice that repairs were necessary, and therefore its obligation to repair was never triggered. Watermill also argued that, as tenant of the abutting property, it was not responsible for maintaining the sidewalk pursuant to New York Administrative Code 7-210. Finally, Watermill argued that subsequent repairs were made to the sidewalk, which established that Tampa was responsible for sidewalk repair.

HRRV opposed the motion, arguing that the lease itself was unambiguous and unequivocally placed the duty of sidewalk maintenance and repair upon Watermill. HRRV focused on Paragraph 11 of the Lease, which required the tenant to keep the sidewalk “in good condition and state of repair.” Any reference to Paragraph 11 in Watermill’s moving papers was conspicuously absent. Further, HRRV contested Watermill’s analysis of Paragraph 15 of the Rider and argued that it was not necessary that a violation be issued for tenant’s duty under this contract to attach—only that a violation might be issued. Lastly, Tampa argued that there was absolutely no evidence that it performed any subsequent sidewalk repairs.

Justice Rakower found that the tenant failed to meet its prima facie burden to entitle it to summary judgment, relying on conclusory allegations and an attorney affirmation. She also agreed that there was a question of fact as to whether the defect in the sidewalk was “structural” and the responsibility of the tenant, pursuant to the terms of the lease. She further held that a photograph of the offending crack was insufficient to establish whether the offending defect amounted to a structural repair.

Tara C. Fappiano and Jonathan M. Kanuck represented Tampa 142, LLC.

In the Matter of the Application of Optimum Societe D’Assurance Inc.
Supreme Court, Nassau County
Index No. 002362-09
June 7, 2010

Uninsured motorist claim defeated at framed issue hearing

On behalf of Optimum Societe D’Assurance, Inc. (Optimum),  HRRV commenced an action for a Framed Issue Hearing to determine if the Respondent, Frantzle Vaval, should be afforded uninsured motorist (UM) benefits and supplemental uninsured motorist (SUM) benefits and whether appear for uninsured motorists (UM) Arbitration.  Ms. Vaval sought SUM/UM Arbitration as a result of a four car accident which occurred on May 13, 2008.  Ms. Vaval was the driver of the vehicle insured by Optimum.  One of the offending vehicles was operated by Lloyd F. McNab and insured by Government Employees Insurance Company (GEICO).  GEICO disclaimed insurance coverage for the loss based on late notice from their insured which triggered, a potential UM claim.

Insurance Law §3420(d) requires liability insurers to “give written notice as soon as is reasonably possible” of a disclaimer of liability or denial of coverage to the insured and the injured person or other claimants.  This requirement is applicable to UM and SUM claims.  Empire Mut. Ins. Co. v. Mahmud, 114 A.D.2d 324, 494 N.Y.S.2d 316 (1st Dept. 1985).

The Court of Appeals has held that written notice of denial or disclaimer as little as two months late is untimely as a matter of law.  Hartford Ins. Co. v. County of Nassau, 46 N.Y.2d 1028 (1979).

In an attempt to force GEICO to provide coverage for this claim, Optimum brought a Petition to Stay Arbitration.  After conducting paper discovery, a Framed Issue Hearing was held before Referee Shifrin.  The accident at issue occurred on May 13, 2008.  It was our position and that of our witness, Ms. Vaval’s counsel, that he sent correspondence to GEICO on June 18, 2008.  GEICO’s witnesses denied receipt of the correspondence.  GEICO then testified that the first notice of loss came from Progressive on August 29, 2008 and they issued a disclaimer letter on September 25, 2008.

Referee Shifrin’s Order held that an insurer is obligated to disclaim as soon as reasonably possible.  Further, the Insurance Law permits policy requirement to be satisfied independently by an injured party (as opposed to the insured) with the exercise of due diligence and reasonableness.  The determinative issue in this matter was one of fact rather than law.  GEICO’s witnesses and its computer log failed to establish the receipt of the June 18, 2008 letter, but rather claim its first notice of the claim was on August 29th from Progressive’s telephone call.  Our witnesses testimony outlined the practice and procedure of Ms. Vaval’s counsel’s law office procedure; the preparation and posting of the June 18 letter which was properly addressed to GEICO; the fact that the letter was not returned by the post office, etc.  GEICO’s responsive argument that the letter was created after the fact and back dated in an attempt to avoid legal malpractice did not stand.

Under the foregoing circumstances there was a rebuttable presumption that GEICO received the letter and its records did not come close to rebutting that presumption.  Trusts v. Guar. Co. v. Barnhardt, 270 NY 350.  Further, it was found that more likely than not, the only source of GEICO’s knowledge as of September of Ms. Vaval’s counsels existence and representation was the June 18, 2008 letter. 

The Court held that June 18, 2008 notice of the claim (36 days) was timely and GEICO’s disclaimer (99 days) was not.  Accordingly, the Petition to Stay Arbitration was granted.

Jonathan A. Judd and Jessica M. Serva represented Optimum Societe D’Assurance.

Rosa v. Scheiber and Grand View Contracting Corp.
Supreme Court, Suffolk County
Index No. 07-36283
May 17, 2010

Successful Motion For Summary Judgment On A Pedestrian Knockdown Case

Carlos and Kathleen Rosa sought money damages for the personal injuries Mr. Rosa sustained during the course of duties of delivering mail for the United State Postal Service on October 6, 2006. Mr. Rosa  was injured when he was struck by the motor vehicle, owned and operated by our clients Grand View Contracting and Steven Scheiber, as he crossed a residential street in Freeport, New York.  In the suit, the plaintiffs’ alleged that Mr. Scheiber was negligent in the operation of his motor vehicle, that he failed to yield the right of way to a pedestrian, and that Grand View Contacting was liable as the owner of the vehicle pursuant to Vehicle and Traffic Law § 388.

However, according to Mr.Scheiber, the plaintiff stepped into the street from behind a parked landscaping trailer, and he had no opportunity to avoid the contact.  During his deposition the plaintiff acknowledge that a landscaping truck, with an attached trailer, was in fact parked on the right hand side of the road facing the wrong direction near the driveway he exited to cross the street. The plaintiff further acknowledge that as he stepped into the street he was struck by the mirror attached to the passenger door of the Scheiber vehicle.

From the inception of the action we worked with the clients, the carrier and our accident reconstruction expert to develop sufficient evidence to file a motion for summary judgment at the close of discovery.  The motion was supported by the testimony of our client and the plaintiff, along with the findings and opinions of our accident reconstruction expert.  Informing his opinions, our expert conducted a site inspection and reviewed the description of the landscaping truck and trailer provided by both the plaintiff and our client, the deposition testimony of the plaintiff, and the testimony from our client that established he was travelling at approximately 22 mph when the incident occurred, and that he did not see the plaintiff until his vehicle had passed the rear of the trailer.  Based upon all of the evidence before him, the accident reconstruction expert was able to conclude with a reasonable degree of certainty that Mr. Scheiber did not have enough time to observe the plaintiff and take evasive measures to avoid the contact. As such, Mr. Scheiber’s actions were not the proximate cause of plaintiff’s injuries.

In a lengthy decision issued by Judge Gazzillo of the Supreme Court, Suffolk County, the judge carefully reviewed the parties testimony, and the opinions rendered by the accident reconstruction expert to determine, as a matter of law, that the actions of the plaintiff were the proximate cause of the accident, and that Mr. Scheiber was operating his vehicle in a reasonable manner.  Accordingly, the court dismissed plaintiffs’ complaint in its entirety.

Gail L. Ritzert and Mark Volpi represented the defendants.

Person v. Staten Island Zoological Society
Supreme Court, Richmond County
Index No.: 102276/07
May 14, 2010

Summary Judgment Granted on Behalf of City and Staten Island Zoo in Case Involving Injuries Sustained at Halloween Event

HRRV prevailed on a motion for summary judgment on behalf of the Staten Island Zoological Society (the “Zoo”) and the City of New York and the City of New York Department of Parks and Recreation  (the “City”) in a negligence action arising out of personal injuries sustained during a popular Halloween event known as “The Spooktacular”  at the Zoo.

Plaintiff allegedly sustained personal injuries when she was suddenly struck by teenaged girls who ran out of the exit of the Haunted Barn after being chased by a man wearing a black costume resembling “The Grim Reaper.” However, “The Grim Reaper” stopped pursuing the girls after the girls exited the Haunted Barn.  Although they were no longer being chased, the girls continued to run away from the Haunted Barn and one of the girls collided with the plaintiff and knocked her to the ground and injured her. Plaintiff sued Staten Island Zoological Society, The City of New York and The City of New York Department of Parks and Recreation alleging that they were negligent in the ownership, operation and control of the premises. The plaintiff also alleged that the individual wearing black, “The Grim Reaper”  was an employee of the Zoo or the City. Plaintiff also sued the person who she claimed ran into her and knocked her to the ground.

After discovery was completed, the Zoo and the City moved for summary judgment. They established that the City did not own, operate, control, or supervise the Zoo or any aspect of the “Spooktacular.” The Zoo demonstrated that the plaintiff failed to establish the elements necessary to sustain a negligence action against the Zoo. At the outset, the Zoo argued that it did not owe the plaintiff a duty of care because the plaintiff assumed the risk of injury by standing in proximity to the exit of the Haunted Barn, knowing that “scared” patrons would be exiting the attraction. Alternatively, the Zoo established that it merely furnished the occasion for the injury-producing event, which was unforeseeable as a matter of law. Moreover, the Zoo noted that the plaintiff could not prove that any of its employees caused or contributed to the alleged accident. The plaintiff merely speculated that “The Grim Reaper” was a Zoo employee, as patrons at the “Spooktacular” also wore Halloween costumes. The Zoo further established that the actions of the girl who struck the plaintiff were the cause of her injuries and that  was no evidence that “The Grim Reaper” (even assuming he or she was an employee of the Zoo) caused  the plaintiff’s injuries.

The court agreed and granted the  motions for summary judgment, dismissing the complaint and any cross-claims asserted against the Zoo and the City. The plaintiff’s action against the girl who struck her was severed and will proceed to trial.

Carla Varriale and Deborah Peters Jordan represented The Staten Island Zoological Society, The City of New York and The City of New York Department of Parks and Recreation.

Montero v. Southern Boulevard Limited Partnership
Appellate Division, First Department
2010 NY Slip Op 04244
March 18, 2010

Appellate Division rejects plaintiff’s attempt to create triable issues of fact as to the existence of  notice and a dangerous condition by changing deposition testimony

Plaintiff Alice Montero alleged that she was caused to trip and fall because of a dangerous condition on a set of stairs owned by Southern Boulevard Limited Partnership.  At her deposition, the plaintiff described the condition as a "lump" or a "crack", but admitted that she never actually saw a lump or a crack, despite having visited the premises on a regular basis.  HRRV obtained summary judgment for Southern Boulevard, avoiding a trial with a sympathetic plaintiff in already plaintiff-friendly Bronx County, by arguing that there was no evidence that it had actual or constructive notice of the alleged defect, and that the photographs submitted by the plaintiff failed to raise a triable issue of fact because one could not tell from looking at them that a dangerous condition even existed, much less for such time as to give the owner constructive notice of the allegedly condition.

The plaintiff appealed the grant of summary judgment, repeating the arguments advanced below and seeking to raise an issue of fact on the basis of inconsistencies within her own testimony, i.e., her varying description of the alleged dangerous condition as a "lump" or a "crack". The Appellate Division, First Department affirmed the lower court's grant of summary judgment.  In particular, the Court appeared persuaded by the argument that, viewing the photographs offered by the plaintiff, it was impossible to tell whether the condition shown, a step with a minimal amount of material missing from the edge of the tread, existed for any significant amount of time or was created, perhaps when heavy equipment was dropped on it, mere minutes before the plaintiff's fall.

Sean Dwyer and Christopher Gibbons represented the defendant.

Funk v. United Parcel Service, Inc.
Appellate Division, Second Department
2010 NY Slip Op 04140
May 11, 2010

Appellate Division reverses lower court and grants summary judgment to The Long Island 2 Day Walk To Fight Breast Cancer, Inc.

Plaintiff Patrick Funk allegedly sustained injuries while a volunteer at The Long Island 2 Day Walk To Fight Breast Cancer event. Mr. Funk volunteered to assist with the preparation and setup of food for the event. Defendant United Parcel Service, Inc. donated a refrigerated trailer for the storage of food at the event. Mr. Funk allegedly sustained injuries by squatting and then jumping, using his left hand for stability, to exit the trailer. He claimed to have tripped when his foot became caught in grooves in the trailer floor that extended from the front to the rear to facilitate the circulation of refrigerated air. He filed suit against United Parcel Service, Inc. alleging that they were negligent in their ownership and operation of the trailer and that he fell due to the condition of the floor of the trailer and due to inadequate lighting. United Parcel Service, Inc. brought suit against The Long Island 2 Day Walk To Fight Breast Cancer, Inc. for contribution and common law indemnification.

The Long Island 2 Day Walk To Fight Breast Cancer, Inc. moved for summary judgment on the grounds that The Long Island 2 Day Walk To Fight Breast Cancer, Inc. did not own, operate or control the trailer, did not have a duty to provide lighting inside of the United Parcel Service trailer and because it did not cause or contribute to the incident occurring. United Parcel Service, Inc. also moved for summary judgment.

The motion court denied both motions, holding that The Long Island 2 Day Walk To Fight Breast Cancer Inc.’s motion was “premature” because defendant United Parcel Service’s liability had not yet been determined.

On appeal, the Appellate Division, Second Department reversed the lower court’s decision and dismissed the third party complaint against The Long Island 2 Day Walk To Fight Breast Cancer Inc. The court held that the plaintiff failed to raise a question of fact that a defective condition existed or that a lack of lighting was the proximate cause of the incident occurring.

Carla Varriale and Deborah Peters Jordan represented The Long Island 2 Day Walk To Fight Breast Cancer, Inc.

Cagliostro v Madison Square Garden, LP
Appellate Division, First Department
2010 NY Slip Op 04112
May 13, 2010

HRRV obtains reversal of denial of summary judgment motion based on expiration of statute of limitations where claim is determined to be for assault and not negligence

Dominique Cagliostro alleged that he sustained a shoulder injury when, attending a rock concert at Madison Square Garden, he fell on a slippery floor that defendant negligently failed to maintain. Plaintiff's deposition testimony, however, was that after he slipped on a wet substance near his seat and hurt his back, he got up and was "walking it off" when he was approached by an employee of defendant, who, when informed that plaintiff had hurt his back, told plaintiff to sit down in an empty aisle seat. Soon thereafter, plaintiff was approached by a different employee of defendant, who, although informed by plaintiff that he was in a lot of pain and had been given the seat by another employee, started to yell at plaintiff and then grabbed and pulled him out of the seat, "manhandling" him and causing him to fall and hurt his shoulder. Nowhere in his deposition did plaintiff suggest that this second fall, in which he hurt his shoulder, was caused by beer or other liquid on the floor.

Defendant moved for summary judgment, arguing that contrary to the tenor of plaintiff's pleadings, his deposition showed that the action was for assault, and, as such, barred by the one-year statute of limitations (CPLR 215[3]). The motion court, after granting defendant leave to amend its answer to assert the statute of limitations, denied dismissal on that ground, stating that it could not find as a matter of law that plaintiff's negligence claim "has been completely supplanted by evidence only of an assault."

The Appellate Division, First Department held that the action was ”plainly for assault” and that the lower court had erred in denying defendant’s motion for summary judgment, noting that "[i] t is well settled that once intentional offensive contact has been established, the actor is liable for assault and not negligence inasmuch as there is no such thing as a negligent assault[.]"

Steven H. Rosenfeld and Carmen A. Nicolaou represented Madison Square Garden.

Majid Hafeezulah v. ASK 244 LLC d/b/a The Plumm, et. al.
Supreme Court, New York County
Index Number 114680/06
April 5, 2010

Court finds nightclub had no duty to protect its patrons from an unforeseeable and unexpected act of violence

Majid Hafeezullah was a patron at Plumm nightclub on July 16, 2006, at which time he was allegedly hit over the head with a glass or bottle by a another patron. The plaintiff argued that The Plumm did not meet its duty owed to patrons within the nightclub, provided inadequate security, violated General Obligations Law § 11-101 (Dram Shop Act) and negligently hired and trained its agents, employees and servants.

After extensive discovery, HRRV moved for summary judgment, on behalf of The Plumm, on the basis that the plaintiff failed to state a cause of action. The Plumm argued that it had no duty to protect patrons from an unforeseeable act of a third party and, if it had a duty, that duty was not breached because it provided adequate security. The deposition testimony of both parties and non-parties, most notably the testimony of the plaintiff, established that The Plumm did not have a duty to protect its patrons from an unforeseeable assault. Specifically, the plaintiff testified that the assailant "popped from out of nowhere" and that the event lasted "no longer than ten seconds". Despite plaintiff's argument that the assailant and his friends were rowdy and intoxicated throughout the evening, and that The Plumm should have anticipated such an incident, Justice Jane S. Solomon disagreed and dismissed the plaintiff's negligence claim. In doing so, Justice Solomon held that the "plaintiff has not made such an evidentiary showing and has not raised any triable issue of fact regarding the foreseeability and preventability of [the assailant's) acts". Because the court found that no duty existed, it did not need to consider whether The Plumm breached any duty with regard to security.

As to the Dram Shop claim, a defendant moving for summary judgment must negate the possibility that alcohol was unlawfully served to a visibly intoxicated person. The Plumm met its initial burden by offering the testimony of the waitress who served the assailant and his group of friends and the testimony of the plaintiff's friend with him at the time of the incident. Specifically, the waitress testified that while the group received bottle service, she did not recall anyone at the assailant's table being intoxicated. The plaintiff's friend testified that while he believed that some of the assailant's friends were intoxicated, he did not believe that the assailant was intoxicated. The plaintiff also argued that he observed the plaintiff drink directly out of the vodka bottle.  The court dismissed the Dram Shop claim and held that the evidence presented was "insufficient to establish a material issue of fact that [the assailant] was visibly intoxicated when he was served alcohol" because "proof of mere consumption of alcohol is not enough to defeat a [defense] motion for summary judgment in a Dram Shop action."

The court also dismissed the plaintiff's negligent hiring, retention, training and supervision claim. The plaintiff argued that The Plumm over served the assailant and caused him to become intoxicated, which was the proximate cause of the assault. In response, The Plumm offered the testimony of one of its waitresses that it was its policy not to serve intoxicated patrons. The court also held that the plaintiff offered no evidence that The Plumm was on notice of an employee's propensity to over serve patrons without ascertaining their physical condition.

Carmen A. Nicolaou and Jonathan M. Kanuck represented ASK 244 LLC d/b/a The Plumm.

Arnold Mariampolski v. Queens Ballpark Company, L.L.C., et. al.
Supreme Court, Queens County
Index Number 13176/08
March 24, 2010

Summary Judgment granted to Citi Field Construction Entities

In Arnold Mariampolski v. City of New York, Hunt Construction Group, Inc., Sterling Equities, Inc., Queens Ballpark Company, L.L.C. and Bovis Lend Lease, Inc., Justice Kevin J. Kerrigan of the Supreme Court, Queens County granted the defendants’ motion for summary judgment dismissing the plaintiff’s Verified Complaint in its entirety.

The plaintiff was allegedly injured on October 2, 2007 at the Citi Field construction project in Flushing, New York when as when he was walking from the parking lot to the construction trailers, he stepped into “a broken, raised, depressed, and/or cracked portion of the walk area thereat.” As a result of the accident, the plaintiff allegedly sustained a tear within the medial and lateral menisci of his left knee and underwent arthroscopic surgery. The plaintiff was an insurance investigator at the construction project to interview an injured work and his foreman.

Among the defendants’ arguments in support of their motion for summary judgment was the following: (1) that the purported condition was not a trivial defect, particularly given the surrounding facts and circumstances (the plaintiff was a field investigator with 22 years experience who had been on hundreds of construction projects and admitted that he observed the puddle before stepping into it); (2) the defendants did not create the condition or have actual or constructive notice of it; and (3) the plaintiff cannot demonstrate that the purported condition was the proximate cause of the accident since the plaintiff’s theory as to the accident was based on pure speculation.

The Court held that the plaintiff’s allegations that his accident was caused by a trench was speculative because the plaintiff was unable to identify the specific trench that caused the accident and, furthermore, the plaintiff did not observe the trench as he was walking and the plaintiff conceded that he was uncertain whether the plaintiff actually stepped into or over the trench. Further, the Court held that the alleged condition was trivial, particularly given the surrounding circumstances. Justice Kerrigan stated the following in his decision:

Given the fact that the location of this condition was not within a thoroughfare open to the public and expected to be maintained in a perfectly safe condition for public pedestrian traffic, but was within an active construction zone — a massive one comprising the demolition of Shea Stadium and the construction of Citi Field — a 1½ -inch deep depression in the ground within the construction zone at the stage of construction cannot be viewed as being unusual or unexpected . . . especially since plaintiff was an experienced insurance claims adjuster whose job was to investigate construction accident at construction sites and who was knowingly at the subject area, having been there several times before and who could be expected to appreciate the risks associated with being in such an area.

Citations omitted.

Jonathan Judd, Carla Varriale and Jarett L. Warner represented the defendants.

Isaiah Smith, an infant by his mother and natural guardian, Shatisha Smith-Haywood, and Shatisha Smith-Haywood, individually v. City Of New York, New York City Department of Parks and Recreation, The Di Gennaro Family YPDC LLC, The Di Gennaro Family YPDC LLC d/b/a Young People’s Day Camp of Brooklyn, Young People’s Day Camp of Brooklyn and Young People’s Day Camps Inc.
Supreme Court, New York County
Index No. 117109/07
March 16, 2010

Summary judgment granted to summer day camp in monkey bars case

Infant plaintiff Isaiah Smith allegedly sustained injuries while he was playing on a set of monkey bars at a playground in a park which was owned and operated by the City of New York. Infant plaintiff was enrolled as a camper with Young People's Day Camp ("YPDC") at the time of the alleged accident. Plaintiffs voluntarily discontinued their claims against the City of New York and the New York City department of Parks and Recreation.

Infant plaintiff, nine years old at the time of the alleged accident, was playing on a set of monkey bars while his hands were wet and he was attempting to skip a bar. Infant plaintiff had testified that he had previously played on monkey bars, he had in fact fallen off of a set of monkey bars before and he was aware that he could fall off and get hurt. Infant plaintiff's mother testified that she even forbade her son from playing on monkey bars because he had previously injured himself while playing on monkey bars.

YPDC moved for summary judgment on the grounds that the infant plaintiff knowingly assumed the risks of injury inherent in playing on the monkey bars, one of which includes the risk of falling. YPDC further argued that the infant plaintiff's injuries that he sustained were a result of his own actions; and that YPDC cannot be held liable for negligently supervising infant plaintiff because adequate supervision was provided under the circumstances.

In granting YPDC's motion, the court agreed that infant plaintiff voluntarily assumed the risks inherent in playing on monkey bars, given his prior experience, awareness of the risk of injury and because the risks of injury were not concealed or hidden. The court also agreed that the plaintiffs in opposition to the motion, failed to establish that there are questions of fact as to whether YPDC negligently supervised infant plaintiff, holding that said argument is "moot" given that "[w]here a plaintiff has assumed the risk of a particular activity, recovery premised on injury attributable to the risk is barred....specifically, recovery may not, in such a circumstance, be had on a theory of negligent supervision…" (Roberts v. Boys and Girls Republic, Inc., 51 A.D.3d 246 (1st Dep't 2008).

Carla Varriale and Gregg Scharaga represented The City of New York and The Di Gennaro Family YPDC LLC d/b/a Young People's Day Camp of Brooklyn.

Lauren Cherubini v. Black Bear Saloon, et al
Supreme Court, Westchester County
Index Number 9382/08
February 24, 2010

Court finds no cause of action exists for an individual who sustains an injury solely as a result of voluntary intoxication

Lauren Cherubini was a patron at Black Bear Saloon on December 15, 2006, at which time she allegedly fell in the bathroom and was injured. The plaintiff alleged in her complaint that, prior to her fall, she consumed alcohol at the Saloon and became intoxicated. In fact, the medical records from the emergency room that the plaintiff visited after the accident recorded her blood alcohol level at .283. The plaintiff argued that she became so intoxicated that defendants should have observed and stopped serving her alcohol as she was a clear danger to herself and other patrons at the saloon. Plaintiff asserted claims under General Obligation Law § 11-101 (Dram Shop Act), New York State Beverage Control Law § 65 and common law negligence. Plaintiff further argued that, based upon public policy considerations, the defendants should not be absolved from liability because they sold alcohol to the visibly intoxicated plaintiff for pecuniary gain. Lastly, plaintiff argued that issues of fact regarding comparative negligence were present rendering the motion premature due to the lack of discovery.

HRRV moved, post-answer and pre-discovery, to dismiss on behalf of WPENT, Inc. d/b/a Black Bear Saloon s/h/a Black Bear Saloon, WPENT, Inc., 166 Mamaroneck Avenue, LLC, Silverman Realty Group, Inc., and Albert J. Silverman on the basis that the plaintiff failed to state a cause of action. In support of their motion to dismiss, the movants argued that the Courts of New York State have routinely held that neither the Dram Shop Act, Alcoholic Beverage Control Act § 65, nor the common law create a right of action for an intoxicated party against a dispenser of alcohol for injuries sustained as a result of his or her own voluntary intoxication.

In granting the defendants' motion, Justice Orazio R. Bellantoni held that the courts have "declined to impose liability upon dispensers of alcoholic beverages for the injuries of voluntary customers on the ground that the dispenser of alcohol owes no duty to protect the customer from the results of the latter's voluntary intoxication." Justice Bellantoni dismissed the plaintiff's complaint in its entirety, holding that the movants demonstrated their entitlement to summary judgment as a matter of law as the plaintiff failed to state a cause of action upon which relief could be granted.

Carmen A. Nicolaou and Jonathan M. Kanuck represented WPENT, Inc. d/b/a Black Bear Saloon s/h/a Black Bear Saloon, WPENT, Inc., 166 Mamaroneck Avenue, LLC, Silverman Realty Group, Inc., and Albert J. Silverman.

Carmelina Giacalone v. Sterling Mets, L.P. and Central Parking Systems of New York
Supreme Court, New York County
Index Number 17351/09
January 20, 2010

Court finds no duty owed by Sterling Mets with respect to parking lot adjacent to stadium

Carmelina Giacalone alleged that on July 3, 2006, while traversing through the Shea Stadium parking lot, she tripped and fell “on a broken, uneven, defective cracked and/or depressed portion of the pavement,” and was caused to sustain personal injuries. She alleged that Sterling and Central Parking were negligent in the ownership, maintenance, operation, supervision and/or control of the parking lot.

HRRV moved on behalf of Sterling to dismiss plaintiff’s Verified Complaint on the basis that Sterling did not owe a duty to plaintiff and therefore, could not have breached a duty, giving rise to liability. In support of its motion to dismiss, Sterling relied on its Restated Agreement with the City of New York to demonstrate that Sterling had no responsibility for the parking lot outside of the Stadium. 

Plaintiff asserted that Sterling’s motion was premature due to lack of discovery and that the Restated Agreement between the City and Sterling contained certain provisions suggesting Sterling’s involvement with the operation of the parking lot. According to plaintiff, the Restated Agreement required Sterling to provide attendants as may be necessary for the operation of the Stadium parking lot, to properly police the Stadium facility and Stadium approach area and to clean the parking lot area on Sterling.

HRRV argued that plaintiff misinterpreted the Restated Agreement between the City and Sterling as it does not require Sterling to maintain the H-2 parking lot where the alleged accident occurred. HRRV also disputed plaintiff’s contention that Sterling’s motion was premature due to lack of discovery, as there was no discovery needed to demonstrate that Sterling did not owe plaintiff a duty with regard to the parking lot.

In granting Sterling’s motion, Justice Allan B. Weiss relied upon Sterling’s documentary evidence, mainly the Restated Agreement, to conclude that Sterling did not lease, occupy, control or assume the obligation to maintain or repair the parking lot. Justice Weiss concluded that Article VII of the Restated Lease Agreement expressly provides that the City has the exclusive right to operate and control the Stadium Parking Area and that the City is responsible for all repairs of the Parking Area. The Court found no ambiguity with respect to the scope of Sterling’s obligations as to the parking lot under the Agreement and as such, concluded that Sterling did not owe a duty of care to the plaintiff. Therefore, because no duty was owed, Sterling could not be held liable for plaintiff’s alleged injuries.

Carla Varriale, Jarett L. Warner and Hilary R. Levine represented Sterling Mets, L.P.

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