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HRRV in the Courtroom

Bowman v. East-West Touring Company and Cygnus Productions, LLC
Supreme Court, New York County
Index Number 103824/03
November 3, 2008

Summary judgment awarded to touring companies dismissing Labor Law claim by roadie

Thomas Bowman, a stagehand employed by Beach Concerts, Inc., alleged to have sustained injuries during the scope of his employment in connection with the erection of a stage set for a concert at what was then referred to as the Jones Beach Theatre on July 26, 2000. Mr. Bowman claimed that, while loading boxes of stage set components onto a forklift, which was raising the boxes to higher levels of the stage set being erected, the forklift operator caused the forklift to run over Mr. Bowman’s right foot.  As a result, Mr. Bowman sustained a crush injury to his right foot, which required surgery.

Plaintiff alleged violations of Labor Law section 200 and 241, and common law negligence. The Labor Law section 241 claim was discontinued and the action was discontinued as to Beach Concerts.

The Supreme Court, New York County (Braun, J.) dismissed Labor Law section 200 and common law negligence claims, finding that only Beach Concerts (plaintiff’s employer) and not the touring companies, had control and supervision over the plaintiff's work. 

Jonathan Judd represented the defendants.

Catherine Lanzarotta v. The City of New York, et. al.
Supreme Court, Queens County
Index Number 21878/06
October 29, 2008

Summary judgment granted to contractor where it established it had no involvement in causing the allegedly dangerous condition

Justice Kevin J. Kerrigan of the Supreme Court, Queens County granted the motion by defendant Galvin Bros., Inc. (“Galvin”) for summary judgment dismissing all claims and cross-claims asserted against it.

The plaintiff alleged that she was injured when she fell as a result of a crack in the sidewalk abutting a driveway area in front of 126-07 18th Avenue in College Point, New York, between 127th Street and 125th Streets, on July 12, 2005.

In support of its motion for summary judgment, defendant Galvin proffered an affidavit of its superintendent/foreman, who averred that Galvin was hired by the City of New York’s Department of Design and Construction to install pedestrian ramps at designated locations throughout Queens County and that the only work performed by Galvin in the general area of the plaintiff’s accident was on the southeast corner of 18th Avenue and 126th Street, approximately 40 feet away from the area of the alleged accident, as stated in the plaintiff’s pleadings.  During his deposition, Galvin’s superintendent/foreman also testified that the work performed by Galvin was confined to the corner as the maximum curb distance from the corner that the City would pay for was 25 feet.  In contrast, during her deposition, the plaintiff testified that she did not fall anywhere near the pedestrian ramp and that the ramp did not have any relation to her accident.

Justice Kerrigan found that, in opposition to Galvin’s motion, the plaintiff failed to set forth any evidence raising a question of fact that Galvin’s work created to the crack in the sidewalk where the plaintiff allegedly fell.

Jonathan Judd and Jarett L. Warner represented Galvin.

Joyce Trebich v. Sterling Mets, L.P.
Supreme Court, Queens County
Index No.:  300672-QTS-2006
October 27, 2008

Dismissal of action against baseball team based on plaintiff’s failure to provide court-ordered discovery

New York’s Appellate Term, Second Department has reversed the Civil Court, Queens County denial of a motion to dismiss the plaintiff’s verified complaint on documented evidence that plaintiff willfully failed to provide requested discovery.

The Trebich case is unusual because the sanction of striking a party’s pleadings is, as the Appellate Term stated, a “drastic remedy.”  However, since the defendant was able to demonstrate the pattern of conduct and stonewalling, the Appellate Term reviewed the record carefully and reversed the Civil Court’s denial of defendant’s motion.  The court stated: 

While we recognize that the drastic remedy of dismissal is reversed for those cases where the conduct of the resisting party is demonstrated to be willful and contumacious (Novick v. DeRosa, 51 AD3d 885 [2008]), we nevertheless conclude that, under the circumstances of this case, dismissal is the only appropriate sanction.  Not only did plaintiff disregard appellant’s good faith attempts to obtain outstanding discovery, but she repeatedly ignored court orders directing her to provide the discovery.  Indeed, plaintiff offered no explanation for her failure to obey four court orders and respond to numerous written defenses inquiries over nearly a two-year period.  This persistent failure to can only be characterized as willful and contumacious (see id; Maiorino v. City of New York, 39 AD3d 601, 602 [2007]; Lanc v. Donnelly, 13 AD3d 593 [2004]).  The fact that plaintiff ultimately  served an incomplete response 31 days after the date of the fourth court order, is in our opinion, too little, too late.

Carla Varriale, Jarett L. Warner and Deborah Peters Jordan represented Sterling Mets, L.P. 

Ruffino v. New York City Transit Authority, et. al.
Appellate Division, First Department
Index Number 23273/06
October 21, 2008

Appellate Division reverses denial of motion to dismiss finding that location of accident is a public place thoroughfare

New York’s Appellate Division, Second Department has reversed the denial of a motion to dismiss in lieu of answering and dismissed a personal injury action on behalf of Sterling Mets, L.P.

In Ruffino v. New York City Transit Authority, et. al. (Index Number 23273/06) the plaintiff commenced the instant action against Sterling Mets, L.P. (hereinafter “Sterling”), among others, to recover damages for personal injuries allegedly sustained by her when she tripped and fell over an uneven piece of wood while walking on a boardwalk between a Long Island Railroad train station and a New York City Transit Authority subway station on her way to Shea Stadium.  Sterling moved pursuant to Civil Practice Law and Rules (“CPLR”) 3211(a)(1) and (7) to dismiss the complaint and all cross claims insofar as asserted against it, contending, inter alia, that it did not own, occupy, control, or make special use of the boardwalk.  The plaintiff opposed the motion, contending, among other things, that Sterling did, in fact, make special use of [*2] the boardwalk and that it was obligated to provide her with a safe means of ingress to and egress from Shea Stadium.  The Supreme Court denied Sterling’s motion to dismiss, finding, in effect, that Sterling failed to establish that it did not have a duty to maintain the boardwalk in a safe condition even if it did not own, occupy, or control the boardwalk.

The Appellate Division disagreed and adopted Sterling’s arguments in support of dismissal “[I]n determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211(a)(7), the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail.  The court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged  fit within any cognizable legal theory.  However, bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference.  When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether [he or] she has stated one.  Likewise, to succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff’s claim”  (Morris v. Morris, 306 AD2d 449, 451 [emphasis added]).

Applying the foregoing standards to the Ruffino case, the Appellate Division, held that Sterling’s motion  to dismiss the plaintiff’s complaint and all cross claims insofar as asserted against it should have been granted.

Here, Sterling submitted evidentiary material in support of its motion to dismiss demonstrating that the boardwalk is a public place thoroughfare.  As correctly observed by Sterling, “[t]he use by [Sterling’s] customer[s] of [a] public [boardwalk] is not a special benefit giving rise to a special use” (Minott v. City of New York, 230 AD2d at 720 [internal quotation marks omitted]; see Lauer v Great S. Bay Seafood, 200 AD2d 471, 472).  While the  plaintiff maintains that Sterling derived a special benefit from the boardwalk since the boardwalk allegedly was constructed specifically to connect Shea Stadium to the nearby Long Island Rail Road train station and New York City Transit Authority subway station, the plaintiff offered no evidentiary support for that conclusory allegation.

The Appellate Division also held that there was no merit to plaintiff’s other arguments that Sterling had a duty to maintain the boardwalk in a safe condition because the boardwalk provided a means if ingress and egress from Shea Stadium, since, again, the evidentiary material submitted by Sterling and left unrefuted by the plaintiff established that Sterling did not own, occupy, or control the boardwalk (see Haymon v. Pettit, 9 NY3d 324; cf. Gallagher v. St. Raymond’s R.C. Church,  21 NY2d 554).

Jarett Warner and Carla Varriale represent Sterling Mets, L.P.

Alejandro Chittick v. USA Cycling, Inc., et al.
Supreme Court of the State of New York, Appellate Division, First Department – Index No. 20955/04
September 23, 2008

Sanctioning of sporting event by national organization does not equal control

New York’s Appellate Division, First Department has affirmed the dismissal of all claims against USA Cycling, Inc., which had sanctioned, but did not organize or control, a road race during which the plaintiffs were injured when the pace vehicle veered off the course and into the crowd.

A local promoter organized the event, obtained sanctioning from USA Cycling and employed the driver of the pace vehicle, which was owned by the promoter. In granting summary judgment and dismissing the complaint as against USA Cycling, Judge Alan Saks, sitting in Supreme Court, Bronx County, had found, inter alia, that: (1) as a sanctioning body, USA Cycling did not exercise sufficient control over the manner in which the event was conducted; (2) there was no proof that the race organizer was the agent of USA Cycling; and (3) the financial benefit derived from participant entrance fees and the imposition of an insurance surcharge by USA Cycling were not factors in determining the degree of control exercised by USA Cycling.

The Appellate Division held that since USA Cycling merely sanctioned the race and had no control over the race, it did not have a duty to prevent any negligence involved therein.  Moreover, the fact that USA Cycling provided its rulebook to the race organizer did not impose a duty upon USA Cycling to enforce any of the rules therein.  Nor does the fact raise an inference as to the existence of a principle-agency relationship between USA Cycling and the race organizer.

Effectively, the Court held that merely sanctioning an event does not equate to control over the event sufficient to support a finding of liability.

Steven H. Rosenfeld and Carmen A. Nicolaou represented USA Cycling.

Brookner v. New York Road Runners Club, Inc. New York Road Runners Foundation, Inc. and The City of New York
New York Court of Appeals – Motion No. 798
September 8, 2008

New York Court of Appeals denies plaintiff’s motion for leave to appeal dismissal of suit by New York Marathon participant based on enforceability of release

The New York Court of Appeals has denied a motion by plaintiff to appeal the dismissal of a suit by a participant in the 2004 New York City Marathon. 

New York’s Appellate Division, Second Department had previously affirmed the dismissal of all claims against the defendants based on a release signed by the plaintiff, who claimed that he was injured while running in the 2004 New York City Marathon. The court rejected the plaintiff's attempt to rely upon General Obligations Law § 5-326, noting that it was inapplicable because the entry fee paid by the plaintiff was for his participation in the marathon and was not an admission fee allowing him to use a city-owned public roadway. The court also held that the public roadway where plaintiff alleges he was injured is not a place of amusement or recreation.

The plaintiff had also argued that he should at least be permitted to conduct discovery as to his gross negligence claim (since the release would not have applied to gross negligence). Plaintiff contended that the increase of runners by 1800 (5% over the previous year) with no contingency plan in place to allow for the disbursement of the runners amounted to gross negligence. Although the court did not address this argument specifically, it ended the opinion by stating that the plaintiff's remaining contentions (presumably this one) were without merit.

Steven H. Rosenfeld, Carmen A. Nicolaou and Deborah Peters represented the defendants.

Garippa v. Five Star Electric Corp., et al
Supreme Court, Richmond County
Index No.:  100031/2006
July 29, 2008

Dismissal of Labor Law action

Justice John A. Fusco, sitting in Richmond County, granted the motion to dismiss in lieu of an answer by fourth-party defendant, Unity Electric Corp. ("Unity").

The case arose from a work related construction accident on the premises located at 89 West 3rd Street, New York, New York on May 30, 2003. Plaintiff asserted violations of Labor Law Sections 200, 240 and 241, as well as applicable Sections of the New York State Industrial Code and OSHA requirements. New York University and Plaza Construction Corp. asserted third-party causes of action against Unity based on negligence, as well as contribution and common law indemnification. However, Unity did not step foot on the premises or commence any work until several weeks after the plaintiff's accident. Further, Unity did not even enter into a contract to perform work at the subject premises until after the plaintiff's accident.  In support of the motion, Unity provided an affidavit that Unity was neither present nor performing work at the subject location and the Agreement that was entered into between Unity and New York University on June 6, 2003, seven days after the accident and did not provide for commencement of the work by Unity until June 20, 2003. Unity established a right to dismissal on the merits under CPLR 3211 or 3212.

Jonathan A. Judd and Jessica M. Serva represented Unity Electric.

Logatto v. City of New York, et al.
Supreme Court of the State of New York, Appellate Division, Second Department – Index No . 46573/03
May 27, 2008

Reversal Obtained-Motion to Dismiss In Lieu of Answering Should Have Been Granted Based on Documentary Evidence

In this personal injury action, the Appellate Division, Second Department unanimously reversed the motion court's denial of Brooklyn Baseball Company's pre-answer motion to dismiss. The motion court had denied the motion with leave to renew after the completion of discovery.  However, the Appellate Division, Second Department determined that Brooklyn Baseball Company's motion should have been granted based on documentary evidence that Brooklyn Baseball Company did not own, control, lease maintain or repair parking lot area where plaintiff purportedly fell. Holding that dismissal pursuant to CPLR 3211 (a) (1) is warranted where the documentary evidence submitted conclusively establishes a defense to the asserted claim as a matter of law, the Appellate Division, Second Department agreed that the Lease Agreement for the minor league baseball stadium did not encompass the area where plaintiff allegedly tripped and fell. As such, it reversed the order below and dismissed the action and any cross-claims against Brooklyn Baseball Company.

Carla Varriale and Jarett L. Warner represented Brooklyn Baseball Company, a/k/a The Brooklyn Cyclones.

Milagros Ulvano v. PPC Construction LLC, et. al.
Supreme Court of the State of New York, Bronx County
Index Number 6653/07
May 6, 2008

Summary Judgment granted to defendant based on electrical contractor’s lack of involvement with electrical upgrade project at condominium.

In Milagros Ulvano v. PPC Construction LLC, et. al., Justice Barry Salman, sitting in the Supreme Court, Bronx County, granted a motion for summary judgment brought by HRRV’s client, defendant Gessin Electrical Contractors, Inc. (“Gessin”).

The plaintiff commenced this wrongful death action based upon allegations that her husband, Mark A. Ulvano, died on January 19, 2005, due to severe burns and smoke inhalation that was caused by the failure of defendants PPC Construction LLC, Gessin, Wagman Construction Co., Inc. and Gilston Electrical Contracting Corp.’s (“Gilston”) failure to repair the electricity, electric circuit breakers and/or electrical fuse box in their apartment.

Gessin moved for summary judgment before any depositions were conducted. In support of its motion, it submitted copies of contracts demonstrating that although Gessin performed electrical work at the Parkchester Condominium project during an electrical upgrade it did not perform the electrical work for all the buildings that comprise the condominium project and did not perform the electrical work with regard to the building within which the decedent’s apartment was located. Rather, the evidence submitted proved that Gilston was the electrical contractor who performed this work. In addition, in support of its motion for summary judgment, Gessin relied upon electrical permit applications which reflected that Gessin did not perform any work to the subject building.

Accordingly, Justice Salman granted Gessin’s motion for summary judgment and dismissed all claims and cross-claims against Gessin.

Jonathan Judd and Jarett L. Warner represented Gessin Electrical Contractors, Inc. in this matter.

Medina v. Costco Wholesale Corporation et al.
Supreme Court, Suffolk County –
Index No. 04-8072
May 29, 2008

Dismissal of Labor Law action against employer resulting from fall through ceiling

Justice Arthur G. Pitts, sitting in Suffolk County, granted the motion for summary judgment by third-party defendants K&G Electric Motor & Pump Corporation and K&G Power Systems (“K&G”) seeking dismissal of the third-party plaintiff’s complaint against it.

This case arose from a work accident occurring on the premises of Costco Wholesale Corp. (“Costco”) on February 25, 2003. Plaintiff, an employee of K&G, had been dispatched to repair a compressor used in Costco’s bakery department. While working on a platform on the mezzanine level, the ceiling collapsed and he fell to the floor below. Plaintiff received workers’ compensation benefits relative to his accident.

K&G was impleaded into the action by Costco on the basis of a written servicing agreement in place between K&G and the manufacturer of the compressor, Ingersoll-Rand Co. (“Ingersoll-Rand”). Costco pointed to the following language in the agreement:

d. [K&G] shall at his own expense repair Equipment which has been improperly repaired or serviced by his personnel and shall indemnify and hold [Ingersoll-Rand] harmless from third party liability as a result of improper repairs or services performed.

In support of its motion for summary judgment, K&G first argued that it was the plaintiff’s employer at the time of the incident, that the plaintiff applied for and received workers compensation benefits and that the plaintiff’s claimed injuries did not constitute a “grave injury” as defined by the Workers’ Compensation Law. Thus, K&G argued, the claims of common law contribution, indemnification, joint and several liability and breach of express and implied warranty against K&G must be dismissed.

These issues were indisputable. As a result, the third-party claims rested on whether K&G had contractually agreed to indemnify Ingersoll-Rand and whether Costco was a third-party beneficiary of that agreement. K&G argued not only that the servicing agreement did not clearly provide for contractual indemnification but also that there was no language to support Costco’s claimed status as a third-party beneficiary. K&G pointed out that the servicing agreement did not contain any hold harmless clause, insurance procurement clause, indemnification clause or similar legal device that would serve as a basis for an indemnification and/or contribution claim by either Costco or Ingersoll-Rand.

K&G further argued that neither Costco nor any other specific owner of Ingersoll-Rand-manufactured equipment is mentioned in the servicing contract. The contract did not contain any language that could conceivably be construed to obligate K&G to defend or indemnify Costco. Indeed, Costco’s flawed theory of liability, if taken to its logical end, would have obligated K&G to indemnify the owner of every piece of Ingersoll-Rand equipment for whatever liability could be conceived. K&G certainly did not “expressly agree to contribution or indemnification” as required by Courts in New York. See, Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577, 673 N.Y.S.2d 966 (1998). “When a party is under no legal duty to indemnify, a contract assuming that obligation must be strictly construed to avoid reading into it a duty which the parties did not intend to be assumed” Tonking v. Port Auth., 3 N.Y.3d 486, 787 N.Y.S.2d 708 (2004) quoting Hooper Associates, Ltd. v. AGS Computers, Inc., 74 N.Y.2d 487, 549 N.Y.S.2d 365 (1989).

The Supreme Court agreed with K&G’s argument. Finding that the servicing agreement did not include an express agreement to indemnify against plaintiff’s claims, the Court found that K&G established its entitlement to summary judgment dismissing the third-party complaint.

Sean P. Dwyer and Mark J. Volpi represented K&G Electric Motor & Pump Corporation and K&G Power Systems.

Stensland v. New York Community Bancorp, et al.,
Supreme Court of the State of New York, Suffolk County – Index No. 37759/2007
May 28, 2008

Case dismissed for failure to serve complaint in timely manner

Plaintiff, an employee of New York Community Bank, was injured when her arm was crushed against a wall by a vault door. She claimed damages in the amount of $5 million. In response to the plaintiff’s summons with notice, the defendants, all of which were clients of this firm, served a notice of appearance and demanded a complaint. When the plaintiff failed to serve the complaint within the 20 days permitted by CPLR 3012(b), the defendants moved to dismiss the action. The defendants also moved to dismiss based on the fact that the plaintiff was barred from suing her employer by the Workers’ Compensation Law. Justice William Rebolini of the Supreme Court, Suffolk County, granted the defendants’ motion, reasoning, inter alia, that the plaintiff, in opposing the motion to dismiss, had presented no reasonable excuse for failing to serve the complaint within the time allotted by the CPLR. In addition, Justice Rebolini held that the plaintiff’s claim was barred by the Workers’ Compensation Law.

Justice Rebolini also denied the plaintiff’s cross-motion for sanctions, which was based on the alleged willful refusal by the defendants to execute a stipulation of discontinuance without prejudice. In denying the cross-motion, Justice Rebolini reasoned that, by executing a stipulation without prejudice, the defendants would have prejudiced the substantial right which had accrued to them due to the plaintiff’s failure to serve a timely complaint, i.e., the right to the dismissal of the entire action.

Jonathan A. Judd represented the defendants.

Bryan and Dunkley v. Crobar, et al.
Supreme Court of the State of New York, Queens County – Index No . 16373/2006
May 27, 2008

Negligent security and Dram Shop case commenced by nightclub shooting victims dismissed

Justice Allan Weiss, sitting in Supreme Queens, granted defendants' motion for summary judgment in a negligent security and Dram Shop claim commenced by two patrons who had been shot while in the nightclub. Recognizing that the defendants were obligated to provide minimal security measures designed to protect those who were lawfully on their premises from reasonably foreseeable acts of third parties, the court accepted and agreed with the plaintiff's argument that their shooting was foreseeable, based upon several violent incidents that had occurred at the nightclub in the past. Nevertheless, the court found that the defendants had provided the level of security required by the law and dismissed the negligent security claim.

The court also dismissed the Dram Shop claim, noting plaintiffs' failure to provide any evidence to support this claim, which would ordinarily include the illegal sale of alcohol and a connection between such as sale and plaintiffs' injuries.

Steven H. Rosenfeld and Carmen A. Nicolaou represented the defendants.

Scottsdale Insurance Company v. Excalibur, LLC, et al.,
Supreme Court of the State of New York, New York County – Index No. 603403/2007
May 20, 2008

Dismissal of plaintiff’s interpleader complaint: Potential exhaustion of an insurance policy’s limits is not tantamount to actual exhaustion

Justice Marylin G. Diamond, sitting in Supreme Court, New York County, granted a motion to dismiss the plaintiff’s interpleader complaint, brought pursuant to N.Y. C.P.L.R. § 1006. The plaintiff, an insurance company, brought this action against its named insured and a myriad of night clubs, which were additional insureds under the insurance policy. The plaintiff sought, among other things, (1) an order permitting it to deposit the insurance policy’s aggregate limits with the court; and (2) a declaration from the court that upon depositing the aggregate limit, it had no further defense or indemnity obligations to any of the defendants.

During the insurance policy’s effective period, the plaintiff’s named insured, a security services provider, was retained by numerous night clubs in New York City. The plaintiff alleged in its interpleader complaint that several of its additional insureds (night clubs), along with its named insured, had been named as defendants in numerous underlying personal injury actions. In addition, the plaintiff alleged that it expected the claims in the underlying personal injury actions to exceed the insurance policy’s aggregate limits, and therefore, its duty to indemnify should be extinguished upon depositing the insurance limits with the court. 

Several of the additional insureds (night clubs), which were represented by HRRV, argued in their motion to dismiss that (1) an insurer’s expectation of exhaustion of an insurance policy’s limits is not tantamount to actual exhaustion through the payments of settlements or judgments; and (2) allowing an insurer to avoid its obligation to defend simply by depositing an insurance policy’s limits into court would undermine the very purpose of insurance contracts. The court, agreeing with the additional insureds binary argument and granting their motion to dismiss, held that the plaintiff’s duty to defend ends only when its coverage limits have actually been paid out through a judgment or settlement. The court further held that if an insurer were allowed to walk away from its duty to defend simply by depositing the insurance policy limits with the court, it would render its duty to provide litigation insurance meaningless.

Abraham E. Havkins and Joseph G. Silver represented JMED Holdings, LLC, d/b/a Pacha, Club BR d/b/a Club Bed, RM Holdings Company, Inc., 10th Avenue Venue Hospitality Group d/b/a Marquee, Cain, LLC d/b/a Cain, and Aer Lounge, LLC

Sioban Flynn, an infant by her mother and natural guardian, Kerry Flynn and Kerry Flynn, individually v. Hudson Valley Stadium Corp and Keystone Professional Baseball Club, Inc., individually and d/b/a Hudson Valley Renegades
Supreme Court, Westchester County –
Index No. 13543/06
April 3, 2008

No duty owed to baseball game patron struck by ball when sitting outside of screened in area; complaint dismissed

Judge Denis Donovan, sitting in Supreme Court, Westchester County, granted a motion to reargue his denial of a motion to dismiss a case brought under half off an seven year-old struck by a baseball at a minor league baseball game, and upon reargument, granted the motion to dismiss.

The plaintiffs alleged that while attending a Hudson Valley Renegades baseball game, the infant plaintiff was injured when she was struck in the right eye by a foul ball. At the time of the incident, the infant plaintiff and her family were seated in the Rookies’ Retreat picnic area, which is located to the left of left field.

In denying defendants’ motion to dismiss, Judge Donovan confused New York's limited duty rule with the assumption of risk doctrine and held that the infant-plaintiff, because of her age, could not be chargeable with having assumed the risk of being injured by a baseball. 

On the motion to reargue, Judge Donovan acknowledged New York’s limited duty rule as set forth in Akins v. Glens Falls City School District, 53 N.Y.2d 325 (1981), and the cases decided thereunder; and recognized that whether the infant plaintiff was primarily attending a baseball game or a picnic (which is the argument advanced by the plaintiffs) and whether the configuration of the picnic area constituted a danger, were both irrelevant. The question to be answered was whether a baseball park owner owes a duty to a patron struck by a baseball when that patron is sitting outside of the screened in area behind home plate.

Judge Donovan held that no such duty was owed. Moreover, he recognized that the infancy of a plaintiff cannot create a duty where no duty otherwise exists.

Steven H. Rosenfeld and Carmen A. Nicolaou represented the defendants.

Marcus Piazzola, an infant by his father and natural guardian, Martin Piazzola, and Martin Piazzola, individually v. West Hills Day Camp, Inc.
Supreme Court, Suffolk County –
Index No. 04-265 17
April 1, 2008 

Assumption of risk barred action on behalf of child injured during soccer game at day camp

Judge Robert W. Doyle, sitting in Supreme Court, Suffolk County granted summary judgment to West Hills Day Camp, in a case involving an eight year old boy injured during a soccer game. Judge Doyle applied the assumption of risk doctrine and also held that the plaintiffs failed to raise a question of fact on the issue of inadequate supervision.

Plaintiff Martin Piazzola commenced this action on behalf of himself and his son, the infant plaintiff Marcus Piazzola, to recover damages for injuries allegedly sustained by the infant plaintiff while playing soccer at a summer camp operated by the defendant. The infant plaintiff’s accident allegedly occurred when he was running for a soccer ball and another player. who was attempting to kick the soccer ball, kicked him in his right leg. The infant plaintiff suffered a broken leg.

The defendant moved for summary judgment dismissing the complaint on the grounds that there was adequate supervision of the infant plaintiff and that a lack of supervision was not the proximate cause of the infant plaintiff’s injury . In addition, the defendant asserted that the infant plaintiff was an experienced soccer player, who assumed the risk associated with participation in the soccer game.

In granting the defendant’s motion, Judge Doyle noted that he did not consider the affidavit of plaintiff's liability expert because he had not been properly disclosed, although he found that even had he considered the affidavit, it was insufficient to raise a triable issue of fact. Also of note, Judge Doyle credited the affidavit of defendant’s medical expert, which stated that the plaintiff suffered a spiral fracture of the leg, which was consistent with sliding and inconsistent with having been kicked (among the plaintiffs' allegations was the camp's failure to provide shin guards).

Steven H. Rosenfeld represented the defendant.

Kim and Posth v. John Doe, Patriot Ford and Ford Motor Company
Civil Court, Queens County – Index No. 301674 QTS 05
February 22, 2008

Dismissal of Complaint Based Upon Enforceable Waiver

Justice Leslie Purificacion, sitting in Civil Court, Queens County, granted summary judgment to Ford Motor Company (herein “Ford”) where the plaintiffs sued Ford after they were injured in a car accident during a test drive of a new model Ford Expedition. The court ultimately determined that the plaintiffs, who signed a release of liability in connection with an event where car salesmen offered test drives, were barred from asserting their negligence claims.

Prior to the accident on May 9, 2002, the plaintiffs signed a release of liability, which released Ford and its employees from any and all responsibilities or liability from injuries or damages resulting from the salesmen’s participation in the event in question. The release also stated that by signing the agreement, the participant understood and was aware that “the activities of the event(s) are very dangerous and involve the risk of serious injury and/or death and/or property damage.” The agreement was signed by the plaintiffs, despite the fact that one of the plaintiffs admittedly did not read the agreement before signing it.

Plaintiffs contended that the waiver agreement was unenforceable due to the statutory obligations set forth in New York Vehicle and Traffic Law § 388 and because the language was allegedly too broad. The court disagreed, and held that there is no language in Vehicle & Traffic Law § 388 that bars contractual waivers, which in some instances, are permissible and enforceable in the motor vehicle industry. The court further held that the language of the agreement, which released Ford for injuries sustained out of or related to the event(s), whether caused by the negligence of Ford or otherwise, was “clear, coherent, detailed, specific, and includes a waiver of negligence in five different paragraphs.” Accordingly, the court ultimately determined that the waiver agreement was valid and acted as a binding release against all participants, including plaintiffs, and summary judgment was granted to Ford.

Carla Varriale and Gregg Scharaga represented Ford Motor Company.

Parbhu Deoki v. Abner Properties Co.
Supreme Court of the State of New York, Appellate Division, Second Department – Index No. 2007-03573
February 13, 2008

Maintenance worker not entitled to the benefit of Labor Law section 240(1) because he was performing routine maintenance and not a repair

In Parbhu Deoki v. Abner Properties Co., the Appellate Division, Second Department held that the plaintiff, a maintenance worker, was not entitled to the benefit of Labor Law section 240(1) because he was performing routine maintenance and not a repair when he sustained his injuries. At the time of the accident, the plaintiff was in the process of replacing the ballast within a fluorescent light fixture when he fell from the ladder he was using to reach the fixture.

During our representation of the defendant, with the assistance of the electrical engineer we established that during the normal course of the fixture use, that ballast required regular replacement, and that the plaintiff routinely replaced ballasts as part of his job. As noted in the court's decision, plaintiff's counsel attempted to argue that since the light fixture was not functioning, the plaintiff was actually engaged in a repair, thus entitling him to protection under Labor Law section 240(1).

This case underscores the importance of determining why a piece of equipment was not working and whether the part or parts that required replacement were items that would be included in the maintenance of the equipment

Gail L. Ritzert and Jessica M. Serva represented the defendant.

Logan v. 530 West 28th Street, LP d/b/a Crobar
Supreme Court of the State of New York, Appellate Division, Second Department – Index No. 2007-04913
February 5, 2008

New York appellate court affirms dismissal of negligent security case based on adequacy of security

New York's Appellate Division, Second Department has affirmed the granting of summary judgment in Logan v. 530 W. 28th Street, L. P., in which HRRV represented the defendant, a night club operator, which did business as Crobar.

The case involved a claim of negligent security based upon a patron on patron assault. The plaintiff alleged that he sustained serious injuries when assaulted by other patrons while he was at the defendant's nightclub; and that the defendant failed to provide adequate security. The defendant submitted evidence that there were 23 New York State licensed security guards on duty on the night in question, seven of whom were assigned to the room in which plaintiff claims he was assaulted. Defendant also established that upon learning of the incident, security guards immediately responded and broke up the altercation. Although plaintiff argued that he never observed security guards stationed in the room in which he was assaulted, he admitted had testified that he was not paying attention as to the presence of security since he was too busy dancing.

Recognizing that a property owner has a duty to take only minimal precautions to protect visitors from foreseeable harm, including foreseeable criminal acts, the lower court, in granting summary judgment, did not address forseeability. Rather, the case was dismissed based upon the adequacy of the security provided.

In affirming the dismissal, the Appellate Division held that the defendant "established its prima facie entitlement to judgment as a matter of law by demonstrating that it satisfied its duty to take minimal security precautions against foreseeable criminal acts of third parties."

Steven H. Rosenfeld and Carmen A. Nicolaou represented the defendant.

Larry Rooney v. Sterling Mets, L.P. and The City of New York
Supreme Court of the State of New York, Queens County – Index No. 5583/06
January 28, 2008

Summary Judgment granted to Sterling Mets, L.P. and the City of New York where alleged condition was trivial in nature and there was no evidence that the defendants had notice of the condition.

In Larry Rooney v. Sterling Mets, L.P., et. al., Justice Phyllis Orlikoff Flug, sitting in the Supreme Court, Queens County, granted the defendants Sterling Mets, L.P. (“Sterling”) and the City of New York’s (“the City”) motion for summary judgment.

The plaintiff Larry Rooney alleged that he sustained personal injuries on August 21, 2005 when he fell as he stepped off an orange painted curb that had a missing piece near a parking lot outside of Shea Stadium. He alleged that Sterling and the City were negligent in their ownership, operation, maintenance and control of Shea Stadium and the subject curb.

Sterling and the City moved for summary judgment to dismiss the plaintiffs’ Verified Complaint on the following grounds: (1) the alleged condition was trivial in nature; (2) they did not create or have notice of the condition; and (3) there was no written notification of the alleged defect.

Although the Court noted that the question of whether a defect was trivial or whether it is a dangerous condition is generally a question of fact for the jury, it stated that “[a] trivial defect on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip on a raised projection is not actionable.” (citations omitted). Based on the evidence submitted by Sterling and the City, the Court held that the alleged condition was trivial in nature and thus not actionable. In coming to her decision, Justice Flug relied upon the determination by Sterling and the City’s expert engineer that the missing piece of curb was three inches wide and three quarters of an inch deep, the photographs of the condition which depicted that it was not obscured from plaintiff’s vision especially in light of the fact that it was painted orange.

Justice Flug also concluded that there was no evidence that Sterling or the City created the condition concerning the missing piece of curb or had actual or constructive notice of the condition. Also, the City could not face liability for the condition because it had no prior written notification of the curb condition, a condition precedent to maintain an action against the City pursuant to the City of New York Administrative Code §7-201(c). Sterling and the City submitted a copy of the Big Apple Pothole Sidewalk Protection Corporation Map for the general area outside Shea Stadium before the date of the alleged accident that showed that there were no recorded defects outside the Stadium.

Justice Flug also concluded that there was only speculation that the missing piece of curb caused the plaintiff’s accident. The plaintiff admitted that he did not notice the missing piece of curb until he got off the ground five minutes after he fell and looked around to determine what caused him to fall, admitted that he was overweight, had an asthmatic condition and sometimes had difficulty walking. The Court stated that “[u]nder these circumstances, where there are several equally plausible explanations for the accident, and no competent admissible proof, only speculation, as to the cause of the accident, defendants’ motion for summary judgment is properly granted.” (citations omitted).

The Court rejected the affidavit of the plaintiffs’ purported engineering expert because the plaintiffs did not identify their expert during pre-trial disclosure and only did so after they filed their Note of Issue, certifying that all discovery was completed. The Court also stated that the affidavit of the plaintiffs’ engineering expert did not create a question of fact because he inspected the curb approximately two years after the date of the alleged accident and because the photographs the expert relied upon did not depict the missing piece of curb was “over one inch” as claimed by the plaintiffs.

Carla Varriale and Jarett L. Warner represented Sterling Mets, L.P. and the City of New York.

Rodriguez v. The City of New York et al.
Supreme Court, Bronx County – Index No. 14547/05
January 24, 2008

Dismissal of action against adjacent landowner resulting from trip and fall in a sidewalk tree well

In Rodriguez v. The City of New York et al., Justice Larry S. Schachner, sitting in Bronx County, granted the motion for summary judgment by defendants M. Lovinger and C. Blechner, as Trustees Under the Last Will and Testament of Marie J. Blechner (“Blechner”) seeking dismissal of the plaintiff’s complaint against it.

This case arose from an accident occurring in front of 371 East 149th Street, Bronx, New York on February 18, 2004. Plaintiff was walking on the sidewalk in front of a general merchandise store when she stepped into a tree well, tripped and fell. The tree well in question was created during a large scale reconstruction project on 149th Street commissioned by the City of New York.

Plaintiff brought suit against the City, Demicco Brothers, the defendant-contractor responsible for the construction, Site Blauvelt, a resident engineering firm, Spike’s Department Store, the tenant of the adjacent building and Blechner, the owner of the adjacent building.

In support of its motion for summary judgment, Blechner argued that the tree well, which was uncovered, awaiting the planting of a tree in the upcoming spring growing season, was created and maintained by the City and Demicco. In fact, the City and Demicco had retained ownership and control over the tree well even after the plaintiff’s accident, as exhibited by the issuance of a repair order following the plaintiff’s accident and the eventual backfilling of the tree well with asphalt to alleviate an acknowledged “tripping hazard”.

In addition, Blechner relied upon the recently decided case of Vucetovic v. Epsom Downs Inc., 2007 N.Y. Slip Op. 6577, 841 N.Y.S.2d 301 (1st Dep’t 2007). In that case, the Appellate Division, First Department determined that tree wells, such as the one which allegedly caused the plaintiff’s accident, are not part of the sidewalk for purposes of the Administrative Code of the City of New York § 7-210, which requires land owners to maintain abutting sidewalks in reasonably safe condition. Administrative Code § 19-101(d) defines a “sidewalk”, in part, as being “intended for use of pedestrians”. Tree wells, however, are not intended for the use of pedestrians and therefore they cannot be part of the “sidewalk”.

The Court in Vucetovic noted that the City’s Department of Parks and Recreation had “exclusive jurisdiction” over the planting, care and cultivation of all trees in streets, including the tree wells themselves. Blechner argued that this responsibility was demonstrated by the fact that Demicco, the City’s contractor, admittedly maintained the tree well to ensure that its soil was level with the abutting sidewalk and filled it in with asphalt once it was deemed a tripping hazard by the City’s consulting engineer, Site Blauvelt.

The Supreme Court agreed with Blechner’s argument and found Vucetovic to be dispositive. Holding that the tree well was, by operation of statute, the City’s responsibility, the Court dismissed all claims against Blechner.

Jonathan A. Judd and Mark J. Volpi represented M. Lovinger and C. Blechner, as Trustees Under the Last Will and Testament of Marie J. Blechner.

Frazier v. City of New York, et al.
Supreme Court of the State of New York, Appellate Division, Second Department – Index No . 2006-06902
January 22, 2008

Dismissal based of transient condition at stadium affirmed

Hot dogs are a commonplace (and popular) feature at a baseball game. However, when a seventy year old man slipped and fell on what he claimed was debris consisting of remnants of hot dogs, bun and napkins and sustained a ruptured quadriceps tendon, he sued the owner and operator of Shea Stadium, as well as the stadium’s maintenance company for negligence.

After the plaintiff fell, he saw a reddish streak on the ramp and a ketchup-like substance on his shoes. The plaintiff’s wife alleged that about an hour before the accident, she saw a messy white condition consisting of a portion of a crushed hotdog bun, ketchup, and mustard on the ramp, as well as a hotdog bun, and two napkins. The plaintiff’s wife did not witness the accident, and she alleged that the plaintiff must have slipped on the remnants of the mess that she had seen about an hour before the accident.

The motion court granted that branch of the maintenance company’s motion, which was for summary judgment dismissing the complaint insofar as asserted against it on the ground that it did not create the alleged defect or have actual or constructive notice of it. The court also granted that branch of the motion of the stadium owner and operator, which was for summary judgment dismissing the complaint insofar as asserted against them on the ground that they had no duty to maintain the area where the accident occurred. On appeal, the plaintiff argued only that the defendants failed to submit evidence sufficient to establish, prima facie, that they did not have notice of the alleged defect.

In a unanimous decision, New York’s Appellate Division, Second Department noted that a defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it. See Prusak v. New York City Hous. Auth., 45 A.D.3d 1022; Rodriguez v. White Plains Pub. Schools, 35 A.D. 3d 704, 705; Perlongo v. Park City 3 & 4 Apts., Inc., 31 A.D.3d 409, 410. Here, the defendants all submitted evidence to establish, prima facie, that they neither created nor had actual or constructive notice of the alleged defect for a sufficient length of time to discover and remedy it. See Prusak v. New York City Hous. Auth., 43 A.D.3d 1022, 1023; Calo v. Bel-Mar Spa, Inc., 38 A.D3d 488, 488-489; Nisimov v. Ocean Props., LLC, A.D.3d 640, 640-641; Stancarone v. Walbaums Inc., 275 A.D.2d 771, 772. In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact. The plaintiff’s contention that the defect which had caused him to fall was the remnant of the mess that his wife had seen an hour before his accident is purely speculative. See Stancarone v. Waldbaums Inc., 275 A.D.2d 771, 773.

Carla Varriale and Jarett L. Warner represented Sterling Mets, L.P. and the City of New York.

Travelers Indemnity Company, as subrogee of Sand Associates v. Giant Step and Kajima Construction, et al.
Supreme Court, New York County – Index No. 110665/2003
January 2, 2008

HRRV Successfully Secures Dismissal of Subrogation Action

Justice Debra James dismissed the plaintiff's subrogation action, arising from a commercial fire that occurred on December 31, 2000 at 400 Lafayette Street, New York, New York. In essence, the cedar flooring beneath a boiler ignited. The plaintiff sought property damages from Kajima Construction Services and Giant Step. In turn, those parties claimed that the boiler was turned on by the an electrical sub-contractor, Al’s Best Electrical, without checking whether water was present in the boiler. Al’s Best Electrical sought indemnity from its sub-contractor, Triangle Electric, represented by Tara C. Fappiano and Shanna R. Torgerson of HRRV.

Justice James dismissed the plaintiff's complaint, and all third-party claims, based upon a cause and origin report which stated that the fire started as the result of the improper installation of the boiler on top of wooden flooring, and expressly states that there was no evidence of any mechanical or electrical malfunction. The court concluded that the plaintiff had not presented any evidence, specifically expert testimony, to contradict this report. Justice James concluded that the mere fact that some of the defendants performed renovation work in the area where the fire originated was insufficient to establish questions of fact as to their negligence.

Tara C. Fappiano and Shanna R. Torgerson represented Triangle Electric.

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