Firm News

Second Department Reinstates Defendant’s Affirmative Defense of Comparative Fault In Motor Vehicle Accident Case Where Plaintiff Was Awarded Summary Judgment on Liability

In a decision dated November 27, 2024, the Appellate Division, Second Department modified the lower Court’s decision by adhering to that portion of the decision which granted plaintiff summary judgment on liability while reinstating our clients Michael Colonna and Royal Realty Corp.’s affirmative defense of comparative fault, which was dismissed by the lower Court. This personal injury action arises out of a motor vehicle accident that occurred on February 9, 2021, on 49th Street at its intersection with Second Avenue in New York, New York. Before depositions, plaintiff moved for summary judgment on liability as well as the dismissal of our clients’ comparative fault affirmative defense, based on the fact that his vehicle was hit in the rear. In opposing plaintiff’s motion, we argued that there is a non-negligent explanation for the accident—that plaintiff stopped short for no apparent reason—which precludes summary judgment in favor of plaintiff on the issue of liability. The lower Court granted plaintiff summary judgment on liability and dismissed our clients’ affirmative defense of comparative fault. On appeal, although the Second Department affirmed summary judgment in plaintiff’s favor on liability, it reinstated our clients’ comparative fault affirmative defense. Prior to this decision, our clients were confined to a damages-only trial with no ability to offset plaintiff’s damages due to his own culpable conduct in how he operated his vehicle, i.e., there would have been no apportionment of fault to plaintiff because our clients’ comparative fault affirmative defense had been dismissed. As a result of this decision, our clients’ can now argue that plaintiff was also at fault, reducing the damages attributed to our clients.

Casimiro Reyes Martinez v. Michael Colonna et al., 2024 WL 4897684, – N.Y.S.3d – (2d Dep’t 2024)

Court Dismisses Plaintiff’s Complaint in Slip and Fall Accident Involving Alleged Water Condition on Basement Floor

In a decision dated December 5, 2024, the Hon. Ulysses B. Leverett granted our client 82 Associates LLC’s motion for summary judgment dismissing the plaintiff’s complaint as a matter of law. The plaintiff alleged that he slipped and fell in the basement of the premises known as 37-02 82nd Street, Jackson Heights, New York, due to water or other wet substance. It is claimed that 82 Associates, the owner of the premises, was negligent in permitting the water or other wet substance to become and remain at the location and that it had actual and constructive of the condition. At his deposition, the plaintiff testified as part of his morning “sweep” of the premises, he went down the stairs to the basement and walked across the section of floor where he subsequently slipped on his way to the lunchroom. He did not observe water on the floor and/or have difficulty walking in the area. After the plaintiff completed his morning “sweep” of the basement, and as he was returning to the main level, his left foot slipped on droplets of water on the floor and he fell. Plaintiff admitted that he believed the water had come from the drain in the basement. He admitted that he did not see water coming from the drain and did not know where the water came from or when the water spilled to the ground. The plaintiff referred to a past flood in a different location resulting from the roof and another incident which involved water backup, subsequent to his accident, resulting from heavy rain. In opposition to the motion, plaintiff argued that an owner has a continuing duty to exercise reasonable care to maintain its property under the circumstances. Plaintiff also argued that the defendant was aware that water would flow from the drain. However, the Court found that 82 Associates’ general awareness of this recurring condition was insufficient to establish its constructive notice of the alleged water on the basement floor which allegedly caused the plaintiff to fall. Here, the plaintiff was unable to testify that he observed any water in the area he was walking in, before he fell. Further, there was no evidence the condition existed for a sufficient length of time prior to the accident. According to the Court, plaintiff’s inability to make the required showing “‘create[d] the possibility that the condition may have emanated only moments before the accident, through no fault or with no knowledge of the defendant, any other condition being pure speculation’”. In light of the foregoing, the Court granted 82 Associates summary judgment dismissing the plaintiff’s complaint because the plaintiff failed to raise an issue of fact whether the defendant had notice of the condition which allegedly caused plaintiff’s fall and because plaintiff failed to establish, in opposition to the motion, that the source of the water at issue was the drain system and that the defendant had immediate notice of it.

Higinio Hago v. 82 Associates LLC et al., Index No. 701065/2020 (Sup. Ct., Queens Co., Dec. 5, 2024)

First Department Reverses Lower Court’s Decision and Dismisses All Claims Against Plumbing Contractor in Subrogated Matter Arising From Fire Loss

In a decision dated October 3, 2024, the Appellate Division, First Department reversed a lower court decision denying our client, PSI Plumbing, summary judgment dismissing all claims against it. This subrogation action arises out of a fire that occurred on June 5, 2013, at the Lexington Hotel located in New York, New York.  In 2011, more than two years before the fire, the Hotel observed water entering the building through a point of entry for Consolidated Edison’s electrical facilities and leaking onto a box housing the Hotel’s electrical equipment in its subbasement. Shortly after the water was discovered, Con Edison performed a dye-test, which confirmed that the water was coming from its vault. Approximately two years later, in early 2013, the Hotel undertook a remediation project which involved relocating most of its electrical equipment from the subbasement to the basement. The Hotel’s prime contractor, Integral, hired PSI to relocate certain water lines to accommodate the electrical scope of work. Following the fire, the insurance companies for the building commenced suit against Con Edison. Con Edison filed a third-party action against PSI and a number of subcontractors seeking common law indemnity and contribution. In the underlying motion, we argued that Con Edison could not be entitled to common law indemnity as a matter of law because the only claims against it were for common law negligence (i.e., it was not subject to statutory or vicarious liability). We also argued that because PSI was not negligent, there was no basis for an apportionment of fault against it and Con Edison’s contribution claims should also be dismissed. The lower Court denied the motion based on a finding that there was a question of fact regarding whether PSI launched a force or instrument of harm. On appeal, the First Department unanimously agreed with our argument that the lower Court erred in finding a question of fact because PSI did not work on the point of entry and based on the undisputed evidence that Con Edison’s vault, not PSI’s work, was the source of the water.

Ace American Insurance Company v. Consolidated Edison Company of New York, Inc., 2024 WL 4375426, 231 A.D.3d 421, – N.Y.S.3d – (1st Dep’t 2024)

Michael Tobin Obtains Defense Verdict in Construction Accident Case

Recently, Partner Michael Tobin obtained a defense verdict in the Court of Claims, dismissing all of the claimant’s causes of action against our client, The State of New York, pursuant to Labor Law §§240(1) and 241(6).  The claimant, a Local 731 journeyman laborer, alleges that he was working on the Slosson Avenue Overpass in connection with the reconstruction of the Staten Island Expressway and Bus/HOV Lane Extension, when his safety harness became caught on an exposed piece of rebar causing him to fall and sustain personal injuries. In her July 26, 2024 decision dismissing the lawsuit, Judge Rodriguez-Morick held that the claimant failed to meet his burden by establishing a violation of the Labor Law because he “testified incredibly” given the evidence that the defense was able to establish at trial.  The Court held that defendants’ evidence was credible because it included the detailed testimony of the claimant’s non-party employer’s safety manager regarding the bridge’s demolition procedure with supporting time-stamped photographs, as well as his testimony regarding his contemporary accident reporting with statements and photographs.  Mr. Tobin was able to effectively cross-examine the claimant to highlight the inconsistencies of his testimony against the defendant’s evidence, as well as his own testimony.   The Court held that its reservations about the claimant’s “accuracy and credibility prohibit it from finding liability against the State on this record.”

Calvin Ross v. The State of New York, Index No. 522934/2018 (Court of Claims, July 24, 2024)

Court Denies Plaintiff’s Motion for Summary Judgment on Labor Law §240(1) Claim Finding Questions of Fact Regarding Whether Labor Law Was Violated

In a decision dated July 24, 2024, Hon. Joy F. Campanelli denied plaintiff’s motion seeking summary judgment on his Labor Law §240(1) cause of action against our client, New York City Transit Authority. At the time of the accident, plaintiff was engaged in leveling and smoothing wet concrete on the pedestrian platform being poured for the subway. At the same time, laborers were involved in cleaning excess concrete from the concrete pipes and hoses, known as “shooting the rabbit.” The laborers used air pressure and a rubber ball to clear the concrete lines. The plaintiff was not directly involved in the pipe cleaning process. He claims that to perform his work he stood on a wood scaffold that was approximately 700 feet in length and four to five feet above the track. Plaintiff claims that he was struck by sprayed concrete when the rubber ball got stuck and then exploded out of the pipe, spraying concrete and causing the hose to fish tail. He claims this caused him to fall off the scaffold and onto the tracks. In opposition to plaintiff’s motion, we argued that the four-foot tall “scaffold ” was actually a concrete form and not a scaffold or a surface plaintiff was expected to stand on. We argued that plaintiff should have been standing on a different platform, which was only 18 inches tall, and that this was the appropriate safety device for him to use. We also argued that, due to the nature of the work, a safety railing on the 18-inch-tall platform would have interfered with the work and a safety harness and lanyard would not have been appropriate given that the maximum height at issue was only four feet. During oral argument, Judge Campanelli asked the plaintiff how he could have stood on the “teeny tiny ledge” created by the concrete form, pushed a “bull float” (which the Judge pointed out was operated with an 18-foot long poll) and not fallen off the “teeny tiny ledge.” She said “teeny tiny platform” at least five times, and really seemed to take exception with plaintiff’s claim. The Court ultimately denied the plaintiff’s motion on his Labor Law §240(1) claim finding questions of fact as to whether the Labor Law was violated.

Anibal Barros et al. v. New York City Transit Authority et al., Index No. 522934/2018 (Sup. Ct. Kings Co., July 24, 2024)

We are pleased to announce that Ben Shatzky has become a Partner of the Firm.

Court Denies Plaintiff’s Motion to Add Third-Party Defendants As Direct Defendants In Case Involving Trip and Fall on Speed Bump In Parking Garage

In a decision dated June 10, 2024, the Hon. Lisa S. Headley denied plaintiff’s motion to amend the pleadings to include our clients, The Helena Associates LLC and The Durst Organization (“Helena and Durst”), as direct defendants. Plaintiff tripped and fell on an allegedly defective speed bump in the parking garage of 601 West 57^th Street. The parking garage was leased and maintained by defendant MPT57, LLC. The plaintiff sought leave to amend her complaint to name third-party defendants Helena and Durst (landlord) as direct defendants after the expiration of the applicable statute of limitations. Plaintiff argued that the new claims of negligence against Helena and Durst “relate back” to the original complaint and that Helena and Durst were “united in interest” with defendant MTP57. Plaintiff also argued there would be no prejudice to Helena and Durst because depositions have not yet been conducted, and Helena and Durst have since been impleaded by MTP57 as third-party defendants for contribution and indemnification. In opposition, third-party defendants Helena and Durst argued that the motion was time-barred by the statute of limitations, and they would be highly prejudiced by the untimely filing. Furthermore, they argued that the “relation back” doctrine does not apply because their interests are not united with defendant MTP57. The Court denied plaintiff’s motion to add third-party defendants Helena and Durst as direct defendants, finding “no semblance of an excuse” for plaintiff’s extensive delay, and finding that such amendment would be prejudicial to the third-party defendants. The statute of limitations had expired on June 26, 2023, and plaintiff was on notice regarding the additional defendants, Helena and Durst, by the lease agreement provided during discovery in 2022.

Lorraine Donnelly v. MTP57 LLC, et al., Index No. 161188/21 (Sup. Ct. N.Y. Co., June 10, 2024)

On April 11, Stephen M. Cohen and Thomas J. Hall lectured at a seminar for Plaza Contracting Company Inc. entitled “Best Practices for Post-Incident Investigation” in New York, New York.

On March 13, Thomas J. Hall lectured at a seminar for Travelers Construction Claims entitled “Evaluating and Defending Loss of Earnings Claims by Union Construction Workers” in New York, New York.

Court Denies Plaintiff’s Motion for Summary Judgment on Labor Law § 240(1), Dismisses Complaint against Tenant and Dismisses Labor Law §§ 200 and 241(6) Claims Against Building Owner

In a series of decisions dated February 5 and 6, 2024, the Hon. Kevin J. Kerrigan denied the plaintiff’s motion seeking summary judgment on his Labor Law §240(1) claim, granted our client New York City Housing Authority summary judgment dismissing the plaintiff’s complaint against it in its entirety and granted our client LIC 73, LLC summary judgment dismissing the plaintiff’s common law negligence, Labor Law §§200 and 241(6) claims and dismissing co-defendant’s cross-claims for common law indemnity and contribution. The plaintiff, a laborer employed by non-party Archstone Builders, claimed that he was injured when he fell from an A-frame ladder while removing flex duct from the a ceiling. The flex duct was connected to a temporary air conditioning unit being used to cool occupied office space during construction. With respect to NYCHA, Judge Kerrigan concluded that as a tenant of the building which did not contract for or supervise the work, it was not a Labor Law defendant. Given this finding, the plaintiff’s complaint as against NYCHA was dismissed in its entirety. As for LIC 73, the Judge agreed that it could not be subject to liability under the common law or pursuant to Labor Law §200 because it did not supervise, direct or control the means and methods of the plaintiff’s work. The Judge also agreed that dismissal of the plaintiff’s Labor Law §241(6) claim was warranted because none of the Industrial Code Rules cited by the plaintiff were violated. As for the plaintiff’s Labor Law §240(1) claim, Judge Kerrigan focused on the plaintiff’s deposition testimony that he did not know whether he fell because the ladder moved, or whether the ladder moved after he started to fall. Ultimately, the Judge found questions of fact as to whether the ladder was unsecured or whether the plaintiff simply fell. Additionally, Judge Kerrigan determined that there were also questions of fact as to whether Labor Law §240(1) was applicable because the plaintiff was removing the duct work prior to construction beginning, which may not constitute protected work. Finally, the Judge dismissed the co-defendants’ cross-claims for common law indemnity and contribution based on a finding that LIC 73 was not negligent as a matter of law.

Gerard Quinn v. The City of New York, Index No. 718810/20 (Sup. Ct. Queens Co., Feb. 5 and 6, 2024)