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CASE OF INJURED PLAINTIFF THROWN OUT BY TRIAL JUDGE ("DIRECTED VERDICT") BECAUSE TESTIMONY SPECULATIVE AS TO SOURCE OF SAND ON WHICH PEDESTRIAN SLIPPED

Gary E. Rosenberg — Thu, 17 May 2012 17:40:00 GMT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Jose MONTAS v. JJC CONSTRUCTION CORPORATION

Date: Feb. 23, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

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INJURED WORKER'S LABOR LAW CLAIMS FROM LADDER SLIP DISMISSED AT TRIAL (Posted by Queens injury attorney Gary E. Rosenberg on Apr 4, 2012)

COURT UPHOLDS JURY VERDICT DISMISSING INJURY CLAIM FOR DEFECTIVE STOVE (Posted by Queens injury attorney Gary E. Rosenberg on Mar 16, 2012)

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Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about April 12, 2010, which granted defendants' motions to dismiss the complaint at the close of the evidence, affirmed, without costs.

Plaintiff alleges that he sustained personal injuries when he stepped over a piece of wood and slipped on "sand and construction debris" as he was crossing the street with his cousin. Approximately three or more feet to plaintiff's right, separated by a six‑ton concrete barrier and chain link fence, was the City and JJC Construction's work site for a project to remove the existing Grand Concourse bridge over East Tremont Avenue and erect a new one, which, among other things, required removing and carting away the old concrete and replacing it with new concrete. Approximately 5 to 10 feet in front of plaintiff was a sidewalk bridge adjacent to a building that, according to JJC's president, was undergoing brick pointing work.

After the close of evidence, the trial court granted defendants' motions for a directed verdict, finding that the testimony of plaintiff and his cousin that the sand on which plaintiff slipped was generated from the cutting and chopping of concrete for the roadway project was "more suggestion than proof," and was insufficient in light of the defense testimony that the roadway project used brown mason sand and that the white sand on which plaintiff slipped was blown over from the pointing project.

Contrary to the dissent's view, the trial court did not improperly make credibility determinations or decide factual issues when it granted defendants' motions. Rather, it correctly determined that plaintiff's self‑serving testimony that JJC's concrete‑chopping activities were the source of the greyish‑white sand in the street on which he slipped was too speculative to raise an issue of fact.

It was plaintiff's initial burden to show that "defendant['s] negligence was a substantial cause of the events which produced the injury" (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980]). " 'Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury' " (Lynn v. Lynn, 216 A.D.2d 194, 195, 628 N.Y.S.2d 667 [1995], quoting Ingersoll v. Liberty Bank of Buffalo, 278 N.Y. 1, 7, 14 N.E.2d 828 [1938]). "Even when there is no requirement for the plaintiff to exclude every other possible cause other than a defendant's breach of duty, 'the record must render the other possible causes sufficiently remote to enable the trier of fact to reach a verdict based upon the logical inferences to be drawn from the evidence, not upon speculation' " (McNally v. Sabban, 32 A.D.3d 340, 341, 820 N.Y.S.2d 260 [2006], quoting Lynn, 216 A.D.2d at 195-196, 628 N.Y.S.2d 667).

Plaintiff testified that he knew he slipped on sand because he felt it underneath his foot when he fell down. However, he did not introduce into evidence a sample of the sand on which he slipped. While plaintiff testified that the sand was the result of the chopping of concrete on the roadway project, he conceded that he never worked with concrete or did road work. Plaintiff and his cousin also conceded that they never did any pointing work and that they were not familiar with the dross it created.

Plaintiff's cousin admitted on cross examination that he did not know if the sand residue came from inside or outside the fence surrounding the roadway project. While he speculated that it "could be" that it came from inside the fence, he conceded that he did not know what material plaintiff slipped on. The City's project engineer, called by plaintiff as part of his direct case, testified that there was another project in the vicinity, that he could not identify the substance on which plaintiff slipped, and that he had not received any complaints about debris on the street that came from JJC's work site. JJC's president testified that the whitish material on which plaintiff slipped was created by the pointing work. While plaintiff and his cousin both testified that they did not see any work being done on the building adjacent to the sidewalk bridge, plaintiff testified that for the most part he and his friends would gather in the area after 5:00 P.M. or 6:00 P.M. His cousin testified that he was not in the area between 9:30 A.M. and 5:00 P.M. Thus, the facts show that it is just as likely that the accident was caused by debris from the pointing project as by debris from the roadway project, and any determination by the trier of fact as to the cause of the accident would be based upon sheer speculation (see Siegel v. City of New York, 86 A.D.3d 452, 455, 928 N.Y.S.2d 1 [2011] ["[p]laintiff's unsupported assertion that it could have been defendants' conduit rather than that of Consolidated Edison or the water main break that caused the purported defect is mere conjecture and fails to raise a triable issue of fact"]; Kimball-Malone v. City of New York, 7 A.D.3d 675, 675-676, 777 N.Y.S.2d 513 [2004] [where plaintiff slipped and fell on gravel and sand while ascending flight of stairs in building undergoing renovations, appellant was entitled to summary judgment because "plaintiffs' contention that the appellant, or a contractor it supervised, created the dangerous condition was too speculative to raise an issue of fact"]).

All concur except TOM, J.P. and ACOSTA, J. who dissent in a memorandum by TOM, J.P. as follows:

TOM, J.P. (dissenting).

Because there is evidence from which the jury could have found that defendants were negligent in permitting construction debris to accumulate on a pedestrian walkway and that such negligence was a proximate cause of plaintiff's injuries, it was error for the trial court to direct a verdict dismissing the complaint for failure to establish a prima facie case. Furthermore, the resolution of factual issues by the court deprived plaintiff of his right to a jury trial.

In September 1999, defendant JJC Construction Corp., under contract with the City, was engaged in demolishing and reconstructing the Grand Concourse overpass and bridge over Tremont Avenue in the Bronx. This work entailed, inter alia, cutting and chopping out the existing concrete roadway, hauling the broken concrete and debris away in dump trucks, and replacing the roadway. The construction area was separated from the street by a six‑ton concrete barrier, approximately three feet tall and topped by a wire fence. Plaintiff contends that he sustained injury slipping on sandy debris generated by JJC's demolition of the concrete overpass.

The dispositive issue in this matter is whether the sandy or gritty substance on which plaintiff slipped was the byproduct of the concrete‑cutting and concrete‑removal operations undertaken by the City's contractor, defendant JJC, as plaintiff alleges, or the cleaning and pointing of brickwork being performed by another, unidentified, contractor at a nearby building, as JJC maintains. The jury heard testimony in support of each theory.

On September 11, 1999, plaintiff and his cousin, Sergio Sanchez, were walking by the construction site when plaintiff noticed a large piece of "two by six" wood approximately five feet long lying on the ground next to the concrete barrier. As plaintiff stepped over the wood, his foot came down on "sand" or "sand and construction debris," causing him to slip and tear the anterior cruciate ligament and meniscus of his right knee. Both plaintiff and his cousin testified that there was a whitish or greyish material, as depicted in plaintiff's photographs, scattered about the ground in the vicinity of the barrier. Plaintiff frequently visited the neighborhood and was familiar with the area. He was aware of the construction project and had observed workers using "big machines" to cut and break up concrete slabs. Plaintiff testified that the sand and construction debris at the site of the accident had been generated by the cutting and chopping of the concrete and that the sand and debris from the demolition work went past the concrete barrier and onto the street where he fell. Plaintiff described the substance as sand and debris generated from the cutting and breaking of concrete.

Sergio Sanchez testified that he was familiar with the subject area since he walked past the site of the accident every morning on his way to work. He saw big "breaking machines" used to demolish the concrete slabs and stated that this work generated "a lot" of "dust." Sanchez saw plaintiff slip and fall over the sandy debris, the presence of which he had noticed at the location many times before the accident.

Plaintiff denied that the sandy substance on which he slipped was from brick pointing work at a nearby building, as urged by JJC, or from any source other than the construction site behind the concrete barrier. Sanchez, who waited at the construction site every day to be picked up and transported to his workplace, stated that he saw no work being performed on the nearby building either during the time he arrived at the pick up point at about 10:00 each morning or at the time he was dropped off at about 5:00 in the evening. For his part, plaintiff testified that he never saw anyone work on that building. Absolutely no one."

Ohene Duodo, a project engineer, supervised the reconstruction project for the Department of Transportation, and oversaw the contractors. He testified that, as part of the reconstruction project, JJC was required to cut the concrete with a saw and then use a jackhammer or an excavator to break and remove the large chunks of concrete, which would then be hauled away in dump trucks. JJC was obligated to keep the work site clean and free of debris, even if it did not create that debris. JJC's duties included the removal of rubbish, debris, waste material, and wood as they accumulated. At a pretrial deposition, Duodo testified that materials used in the reconstruction project, including sand, were often deposited onto the roadway directly from delivery vehicles. He added that it was his practice to require the contractor to remove any sand or other debris from the roadway "whether he was responsible or not responsible because of our project." Duodo stated that he could not identify the material depicted in plaintiff's photographs. He stated that some of the material depicted in the photos could be seen "hanging on the wire mesh" above the concrete barrier. He concluded that the material depicted could be "many things" including "debris" and that "pure sand" "doesn't look like that." Duodo added that the sand used in city roadway construction projects is not white, like the substance depicted in plaintiff's photo. He further noted that during the time of plaintiff's fall, there was an ongoing pointing project on a nearby building, which was unrelated to the City's and JJC's work.

After plaintiff rested, defendants moved to dismiss the complaint. The court reserved decision, and the defense called Donald Zanfardino, the president of JJC Construction for the duration of the overpass reconstruction project. He testified that the sand used by JJC was yellow in color and that the company's responsibility for cleaning up the work site was limited to the area enclosed by the concrete barrier and adjoining fence and did not extend to the walkway beyond the barrier. This testimony was inconsistent with testimony given by Duodo.

From logs he maintained of the project's progress, Zanfardino recounted the work that was undertaken each day during the week preceding plaintiff's injury, which was sustained on a Saturday evening. On Friday, a concrete curb and rock had been removed from an area where a fire hydrant was to be installed. On the day of the accident, Zanfardino had recorded a log entry that read, "clean up concrete rock," which he explained referred to the remains of the concrete curb. Contrary to the testimony given by plaintiff and his cousin, Zanfardino stated that he had indeed observed work being performed at the nearby building, asserting that "they were re‑pointing the brick work around the entire building." He described the mortar and cement mix being used as "a greyish material." Zanfardino asserted that the whitish material depicted in plaintiff's photographs was old mortar from the brick repointing project. Samples of materials employed in the City's reconstruction project were introduced into evidence to show the color of the sand that was being used.

After the conclusion of Zanfardino's testimony, the defense rested, and the court granted the dismissal motion on the record; the ruling was later reduced to the written decision and order from which plaintiff appeals. With respect to the cause of plaintiff's fall, the court found that Zanfardino "differentiated the grit on the ground from any sand or crushed concrete that was used in the JJC/City project." The court noted that "[t]he only evidence as to the source of the sand came from JJC's witness who testified that its white collar [sic] made it different from any material used in the renovation project, which was light brown or dark brown."

Assessing the relative strength of the evidence, the court continued, "Plaintiff's evidence was much more suggestion than proof regarding the source of the sand. This evidence was met by physical evidence, in the form of samples of the type of sand used in the project, as well as the testimony of JJC's witness, who placed another project at the site of the accident, and in describing the dross from the project, matched it to the cause of Plaintiff's fall." The court concluded that "there is insufficient evidence of causation to put this dispute before a jury." This was error.

A directed verdict pursuant to CPLR 4401 may be granted only "where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party" (Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997]). The evidence must be assessed in a light most favorable to the responding party and the benefit of every factual inference that may properly be drawn must be accorded him (id., citing Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978]). Where, as here, a matter is tried to a jury, the court lacks the power to make findings of fact and, thus, may not resolve any factual issue in deciding whether to direct a verdict (see Cohen, 45 N.Y.2d at 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145, citing Middleton v. Whitridge, 213 N.Y. 499, 506-508, 108 N.E. 192 [1915] [the power of a court to make factual findings is foreclosed by the constitutional right to trial by jury]). Thus, Supreme Court erred in resolving the central factual contention in this case.

As an initial matter, the samples of sand, introduced into evidence by JJC apparently with the intent to demonstrate that it was not the substance on which plaintiff slipped, is immaterial. As noted at the outset, the central issue in this case is whether the gritty debris alleged to have caused plaintiff to slip and fall was the result of the cutting and breaking of concrete by JJC or, alternatively, the removal of mortar from the adjacent building by some unidentified third party. The mason's sand that was used to mix new cement for use in the City's project was never implicated as the cause of plaintiff's injury, and its color and other characteristics have no bearing on this case.

The divergent testimony given by the different witnesses during trial merely serves to establish the existence of credibility issues that the trier of fact was required to resolve in making its findings. Plaintiff owned an "environmental construction company," which performed, among other things, interior demolition and renovation work. He testified that he observed "big machines" cutting and breaking up concrete slabs which generated "a lot of dust" and sandy debris that spilled from the site past the concrete barrier and onto the adjacent street where he slipped and fell. Likewise, Sanchez observed the accumulation of dust and sandy debris at that location on many occasions before plaintiff's fall. Plaintiff and Sanchez both testified that they had viewed the whitish dust and debris generated by JJC's concrete‑cutting breaking activities, and that the debris was on both sides of the concrete barrier next to the site of the accident. Indeed, Duodo testified that some of the whitish material depicted in plaintiff's photographs could be seen on the wire mesh above the concrete barrier.

In contrast, defendants point to the testimony of Zanfardino and Duodo that there was a brick‑pointing project on the building behind the scaffolding visible in plaintiff's photos, and that this repointing project, not JJC's reconstruction work, was the source of the sandy material upon which plaintiff slipped. Zanfardino was the only witness to maintain that repointing work was actively being performed at the nearby building, and his testimony was explicitly contradicted by the testimony of plaintiff and Sanchez. Zanfardino went to the site of the accident after plaintiff's fall and confirmed that there was debris there. However, he made no attempt to clean it because he determined that the debris was not from his project but was from the brick repointing work. Once again, his account was inconsistent with the testimony of Duodo, who stated that JJC would be directed to clean the debris on the roadway even though it was outside of the work site and regardless of whether it had been generated by JJC.

The trial court deprived plaintiff of his right to have this case decided by a jury (Middleton v. Whitridge, 213 N.Y. at 506-508, 108 N.E. 192) by usurping the jury's function and purporting to resolve, as issues of law (see CPLR 4401; Cohen v. Hallmark Cards, 45 N.Y.2d at 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145), questions of credibility and issues of fact (see Colozzo v. LoVece, 144 A.D.2d 617, 618, 534 N.Y.S.2d 701 [1988]). The court further erred in drawing favorable inferences from the facts in favor of defendant, rather than in favor of plaintiff (Cohen, 45 N.Y.2d at 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145).

Although the trial court did not reach JJC's alternative argument that it was an independent contractor that had no duty to third parties, the testimony of plaintiff and his cousin, if credited, serves to establish liability on the ground that it was JJC that created the hazardous condition (see Lewis v. Metropolitan Transp. Auth., 99 A.D.2d 246, 249, 472 N.Y.S.2d 368 [1984], affd. for reasons stated 64 N.Y.2d 670, 485 N.Y.S.2d 252, 474 N.E.2d 612 [1984]).

The majority's analysis of this case is flawed. In concluding that defendant's action should be dismissed, the majority relies on this Court's ruling in Lynn v. Lynn, 216 A.D.2d 194, 628 N.Y.S.2d 667 [1995] to conclude that plaintiff's injury could just as likely have been caused by debris from the repointing work. The facts in Lynn are distinguishable, and its holding has no application to the present appeal. There, an 81-year-old plaintiff fell down a flight of stairs and commenced an action against the property owner. She contended that the stairway was defective and that there was inadequate lighting. As a result of the fall, the plaintiff suffered amnesia and was unable to testify as to the circumstances of the accident or the cause of her fall. Thus, she failed to meet her burden to establish prima facie that the owner's negligence was a proximate cause of the events that produced her injuries, and the owner was entitled to summary judgment in his favor. In stark contrast, plaintiff herein suffers from no amnesia, and based on the testimony and evidence adduced at trial, has made out a prima facie case that his injuries were caused by defendant's negligent maintenance of the construction site. In making a factual finding that plaintiff's injury could just as likely have been caused by another source, the majority improperly condones the trial court's improvident intrusion into the jury's exclusive province to decide factual issues (cf. Siegel v. City of New York, 86 A.D.3d 452, 928 N.Y.S.2d 1 [2011] [summary judgment]; McNally v. Sabban, 32 A.D.3d 340, 820 N.Y.S.2d 260 [2006] [same]; Kimball-Malone v. City of New York, 7 A.D.3d 675, 777 N.Y.S.2d 513 [2004] [same]).

Viewing the evidence in the light most favorable to plaintiff, a finder of fact could rationally have found that the sandy debris upon which he claims to have slipped and fallen was generated by JJC's activities (see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997]; Sweeney v. Bruckner Plaza Assoc., 57 A.D.3d 347, 349, 869 N.Y.S.2d 453 [2008], appeal dismissed 12 N.Y.3d 832, 881 N.Y.S.2d 10, 908 N.E.2d 918 [2009]). The jurors could reasonably have credited the testimony of plaintiff and his cousin, based on their direct observations, that JJC's concrete‑cutting activities were the source of the sandy debris. The testimony of defendants' witnesses that a nearby brick‑repointing project was the source of the sandy debris merely raised a credibility issue for the jurors, who were free to reject that testimony (see Matter of Nowakowski, 2 N.Y.2d 618, 622, 162 N.Y.S.2d 19, 142 N.E.2d 198 [1957]; Perez v. Andrews Plaza Hous. Assoc., L.P., 68 A.D.3d 512, 891 N.Y.S.2d 40 [2009]). The majority agrees with the trial court that plaintiff's testimony was self‑serving. But if plaintiff's testimony concerning the cause of his injury can be considered self‑serving, so too can Zanfardino's testimony denying liability. Once again, assessment of the credibility of witnesses is within the sole prerogative of the jury.

Finally, as a matter of procedure, the court improvidently decided the motion without first submitting the case to the jury. It has been noted by this Court that the better practice is to entertain motions for judgment as a matter of law only after the jury has returned a verdict, so that if an appellate court disagrees with the ruling, the verdict may be reinstated rather than remanding the matter for a new trial (see Jacino v. Sugerman, 10 A.D.3d 593, 594_595, 781 N.Y.S.2d 663 [2004]; Vera v. Knolls Ambulance Serv., 160 A.D.2d 494, 496, 554 N.Y.S.2d 158 [1990]; Matter of Austin v. Consilvio, 295 A.D.2d 244, 246, 744 N.Y.S.2d 164 [2002]). As this Court pointed out in Rosario v. City of New York, 157 A.D.2d 467, 472, 549 N.Y.S.2d 661 [1990], citing Greenberg v. Bar Steel Constr. Corp., 37 A.D.2d 162, 163, 323 N.Y.S.2d 193 [1971], "Unless it appears that the defendant's case will consume an inordinate amount of the trial court's time, the better practice is to submit the case to the jury which, in some instances, may obviate defendant's CPLR 4401 motion by returning a defendant's verdict." Here, the jury heard all the evidence, and the court reserved decision on the motion until both sides had rested. It would hardly have been an imposition on the court's time to take the obvious next step of obtaining a jury verdict to avoid the potential waste of the time expended on the trial.

Accordingly, the order should be reversed and the matter remanded for a new trial.

CONSTRUCTION WORKER BOARDING UP WINDOWS FOR BUILDING DEMOLITION PROTECTED BY N.Y.S. LABOR LAW IN FALL OFF LADDER

Gary E. Rosenberg — Wed, 16 May 2012 17:50:00 GMT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Angel L. Santiago v. Rusciano & Son, Inc.

Date: Feb. 23, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

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RELATED POSTS:

LABOR LAW ACCIDENT PLAINTIFF DENIED SUMMARY JUDGMENT AFTER A-FRAME LADDER FALL DUE TO ISSUES OF FACT (Posted by Queens injury attorney Gary E. Rosenberg on Feb 6, 2012)

WORKER WINS SUMMARY JUDGMENT ON LIABILITY ON LABOR LAW CLAIM FOR SHAKY LADDER; NOT A SPECIAL EMPLOYEE (Posted by Queens injury attorney Gary E. Rosenberg on Mar 9, 2012)

CONSTRUCTION WORKER FALLS OFF SCISSOR LIFT; WINS LIABILITY SUMMARY JUDGMENT UNDER NEW YORK LABOR LAW (Posted by Queens injury attorney Gary E. Rosenberg on Feb 23, 2012)

TELEPHONE INSTALLER INJURED IN FALL OFF LADDER WAS "ALTERING" BUILDING UNDER NEW YORK STATE LABOR LAW (Posted by Queens injury attorney Gary E. Rosenberg on Nov 9, 2011)

LABOR LAW CLAIMS UPHELD IN FALL OFF A-FRAME LADDER; DEFENSE SUMMARY JUDGMENT DENIED (Posted by Queens injury attorney Gary E. Rosenberg on Feb 22, 2012)

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Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered on or about January 21, 2011, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on the issue of liability on his Labor Law Sec. 240(1) cause of action, and granted defendants' cross motion (collectively, Owners) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, to deny the cross motion as to the Secs. 240(1) and 241(6) causes of action, and to grant plaintiff's motion, and otherwise affirmed, without costs.

Plaintiff was injured when, while boarding up windows to make the subject premises uninhabitable and to protect it from vandalism in anticipation of demolition, he fell several feet from a ladder. Plaintiff's accident fell within the purview of section 240(1), since the ladder supplied to plaintiff slipped out from underneath him and did not offer proper protection (see Kijak v. 330 Madison Ave. Corp., 251 A.D.2d 152, 153, 675 N.Y.S.2d 341 [1998]; see also Velasco v. Green-Wood Cemetery, 8 A.D.3d 88, 89, 779 N.Y.S.2d 459 [2004]). Moreover, plaintiff was "altering" the premises within the meaning of Labor Law Sec. 240(1). He was engaged in activities designed to prepare and secure the premises' windows for demolition, thereby "making a significant physical change to the configuration or composition of the building" (Joblon v. Solow, 91 N.Y.2d 457, 465, 672 N.Y.S.2d 286, 695 N.E.2d 237 [1998]; see Belding v. Verizon N.Y., Inc., 14 N.Y.3d 751, 752, 898 N.Y.S.2d 539, 925 N.E.2d 577 [2010]).

The Labor Law Sec. 241(6) cause of action was improperly dismissed. Plaintiff was performing work on the premises as it was being prepared for demolition.

Plaintiff's Labor Law Sec. 200 claim was properly dismissed. The accident did not arise from a dangerous condition of the premises and the Owners did not direct or control plaintiff's work (see Campuzano v. Board of Educ. of City of N.Y., 54 A.D.3d 268, 269, 863 N.Y.S.2d 184 [2008]).

ISSUE OF FACT AS TO WHETHER PEDESTRIAN ACCIDENT VICTIM WAS IN CROSSWALK WHEN STRUCK BY DEFENDANT'S CAR

Gary E. Rosenberg — Tue, 15 May 2012 17:05:00 GMT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Beatrice E. Wein v. Rickie A. Robinson

Date: Feb. 23, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident attorney)

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RELATED POSTS:

DEFENSE DENIED SUMMARY JUDGMENT IN PEDESTRIAN KNOCKDOWN CASE MOTOR VEHICLE ACCIDENT WHERE PEDESTRIAN DOESN'T REMEMBER (Posted by Queens accident attorney Gary E. Rosenberg on Apr 22, 2012)

AVOID INJURING A CHILD IN A BACKOVER ACCIDENT (Posted by Queens accident attorney Gary E. Rosenberg on October 25, 2010)

SLIP-AND-FALL ACCIDENT VICTIM CAN'T SUE FOR ALLEGED OIL LEAK FROM CAR; DEFENSE SUMMARY JUDGMENT GRANTED, CASE DISMISSED (Posted by Queens accident attorney Gary E. Rosenberg on Apr 1, 2012)

SUMMARY JUDGMENT IN FAVOR OF BLIND PEDESTRIAN KILLED BY LEFT-TURNING BUS (Posted by Queens accident attorney Gary E. Rosenberg on Jan 14, 2012)

PLAINTIFF DENIED SUMMARY JUDGMENT ON LIABILITY AGAINST ILLEGAL U-TURNING DEFENDANT (Posted by Queens accident attorney Gary E. Rosenberg on Mar 4, 2012)

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Order, Supreme Court, New York County (George J. Silver, J.), entered July 15, 2011, which denied plaintiffs' motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff pedestrian alleges that she was injured when, while crossing the street within the crosswalk, she was struck by defendant's SUV. Plaintiff also cites to the police report noting defendant's statement that he struck plaintiff "while in the crosswalk." In contrast, defendant driver, at his deposition, denied making that statement to the responding officer, and testified that he did not see anyone in the crosswalk or on the sidewalk approaching the crosswalk prior to the accident. Moreover, he testified how the left front of his vehicle came into contact with plaintiff, with the left rear tire still in the crosswalk, and that he saw plaintiff lying on the ground, with her feet roughly where the door was and her head toward the front of his 14-foot-long vehicle. These conflicting accounts raise triable issues of fact as to whether plaintiff was in the crosswalk at the time of the accident and had the right‑of‑way, and whether plaintiff pedestrian or defendant driver failed to exercise due care to avoid the accident or was negligent in any manner (see Calcano v. Rodriguez, 91 A.D.3d 468, 936 N.Y.S.2d 185 [2012]; Villaverde v. Santiago-Aponte, 84 A.D.3d 506, 922 N.Y.S.2d 369 [2011]; Lopez v. Garcia, 67 A.D.3d 558, 889 N.Y.S.2d 174 [2009]).

While plaintiffs may use defendant's admission in the police report, the relative weight to be accorded to the admission in light of defendant's subsequent explanation at his deposition, is to be determined by a jury (see Fravezzi v. Koritz, 295 A.D.2d 290, 744 N.Y.S.2d 669 [2002]).

We have reviewed plaintiffs' remaining arguments and find them unavailing.

AUTO ACCIDENT INJURY CASE JURY TRIAL VERDICT, WHERE POLICE OFFICER FOUND NOT IN "EMERGENCY OPERATION," UPHELD

Gary E. Rosenberg — Mon, 14 May 2012 17:50:00 GMT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Barbara Banks v. The City of New York

Date: Feb. 23, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident attorney)

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RELATED POSTS:

POLICE CAR IN ACCIDENT WHILE ENGAGED IN EMERGENCY OPERATION NOT LIABLE UNDER "RECKLESS DISREGARD" NEGLIGENCE STANDARD (Posted by Queens accident attorney Gary E. Rosenberg on Dec 15, 2011)

POLICE DENIED SUMMARY JUDGMENT IN PEDESTRIAN KNOCKDOWN BY POLICE CAR: (1) DEFENSE DID NOT MEET ITS BURDEN ON NO-FAULT "SERIOUS INJURY," AND, (2) VEHICLE WASN'T IN "EMERGENCY OPERATION" (Posted by Queens accident attorney Gary E. Rosenberg on Feb 4, 2012)

FIRE TRUCK IN ACCIDENT NOT IN "EMERGENCY OPERATION" AND NOT ENTITLED TO "RECKLESS DISREGARD" STANDARD; DEFENSE SUMMARY JUDGMENT DENIED (Posted by Queens accident attorney Gary E. Rosenberg on Mar 11, 2012)

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Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered March 3, 2010, upon a jury verdict in plaintiff's favor, unanimously affirmed, without costs.

The court properly charged the jury with determining whether, at the time of the accident, defendant police officer was "involved in an emergency operation" of an authorized emergency vehicle, pursuant to Vehicle and Traffic Law Sec. 1104. The officer's operation of his vehicle while investigating a person who,from a truck, made a hand motion and may have waved to the police is not one of the vehicular operations specifically listed in Vehicle and Traffic Law Sec. 114-b as an "emergency operation." Plaintiff on the other hand denied seeing the truck. Thus, whether it was an emergency operation was an issue of fact (see e.g. Jordan v. County of Suffolk, 70 A.D.3d 779, 895 N.Y.S.2d 145 [2010]; see also Rodriguez v. Incorporated Vil. of Freeport, 21 A.D.3d 1024, 801 N.Y.S.2d 352 [2005]; compare Criscione v. City of New York, 97 N.Y.2d 152, 155-158, 736 N.Y.S.2d 656, 762 N.E.2d 342 [2001] [officer undisputedly operating patrol vehicle while responding to police dispatch to investigate 911 call was involved in "emergency operation" as matter of law]).

The court properly allowed plaintiff's economist to testify about future damages, since there was no evidence of a willful or intentional failure to disclose or of prejudice to defendants (see CPLR 3101[d]; St. Hilaire v. White, 305 A.D.2d 209, 210, 759 N.Y.S.2d 74 [2003]; McDermott v. Alvey, Inc., 198 A.D.2d 95, 603 N.Y.S.2d 162 [1993]). While plaintiff exchanged her expert economist's report only about two weeks before the scheduled start of the trial, the exchange was made only three days after the report was issued. Given that the bill of particulars pleaded continuing lost earnings, defendants cannot be said to have been surprised by the expert exchange. In any event, they cannot now complain of prejudice, having failed to move to exclude the testimony until after the trial began (see Freeman v. Kirkland, 184 A.D.2d 331, 584 N.Y.S.2d 828 [1992]). The economist's assumption that plaintiff was unable to work was "fairly inferable from the record" (Williams v. Turner Constr., 2 A.D.3d 217, 768 N.Y.S.2d 314 [2003]).

The court also properly allowed plaintiff's treating orthopedic surgeon to testify as to the possible need for future knee replacement surgery, despite plaintiff's noncompliance with 22 NYCRR 202.17 (g) (see 22 NYCRR 202.17[h]; McDougald v. Garber, 135 A.D.2d 80, 94-95, 524 N.Y.S.2d 192 [1988], mod on other grounds 73 N.Y.2d 246, 538 N.Y.S.2d 937, 536 N.E.2d 372 [1989]).

CONSTRUCTION CONTRACTOR LIABLE UNDER SCAFFOLD (LABOR) LAW FOR FAILING TO PROVIDE LADDER TO PREVENT FALL OF WORKER WHO ASKED FOR LADDER TO UNLOAD TRUCK, AND THEN FELL 15 FEET TO GROUND

Gary E. Rosenberg — Sun, 13 May 2012 17:50:00 GMT

Court: Supreme Court, Appellate Division, First Department, New York

Case: Patrick Naughton, Jr. v. The City of New York

Date: Feb. 23, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury lawyer)

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RELATED POSTS:

ACCIDENT VICTIM WINS SUMMARY JUDGMENT ON LABOR LAW CLAIM FOR FALLING WHILE CLIMBING DOWN TREE TO EXIT SCAFFOLD (Posted by Queens injury lawyer Gary E. Rosenberg on Jan 28, 2012)

DEFENSE SUMMARY JUDGMENT DENIED AGAINST N.Y.S. LABOR LAW CLAIM OF WORKER WHO FELL FROM SCAFFOLD MISSING ATTACHED LADDER (Posted by Queens injury lawyer Gary E. Rosenberg on Apr 17, 2012)

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RICHTER, J.

In this Labor Law action, plaintiff alleges that he was injured when he fell approximately 15 feet to the ground while unloading bundles of curtain wall panels off a flatbed truck. The panels were part of a renovation project of the Family Court building in Lower Manhattan, and were to be used for the building's facade. Defendant Petrocelli Construction, Inc. was the general construction contractor for the job. Petrocelli retained third‑party defendant W & W Glass Systems, Inc. to perform all curtain wall, glass and stone work. W & W Glass, in turn, subcontracted the unloading and installation of the curtain wall panels to third‑party defendant Metal Sales Co., Inc., plaintiff's employer.

On the day of the accident, six bundles of curtain wall panels arrived at the work site on a flatbed truck. Each bundle was approximately 10 feet long, 4 feet wide and 10 feet tall. Plaintiff was instructed by his supervisor to climb on top of the bundles, attach each bundle to a crane and make sure the bundles stayed apart while they were hoisted to a sidewalk bridge above. When plaintiff asked his supervisor for a ladder, he was told that a ladder was not needed, and that instead he should climb up the side of the bundles. Plaintiff explained to his supervisor that he did not like being on top of the bundles without a ladder because there was no way to "get out of there." Despite his protestations, plaintiff was not provided with a ladder.

Plaintiff then climbed to the top of one of the bundles, which was 10-11 feet above the flatbed surface and 15-16 feet above the ground. Plaintiff explained that it was necessary to work on top of the bundles so that he could attach the chokers to the corners and ensure that the bundles did not interfere with each other while being hoisted. Two of plaintiff's coworkers were standing on the street below holding tag lines attached to the bottom of the bundles to control their movement. While standing on an adjacent bundle, plaintiff rigged one of the bundles, and the crane operator began to lift the load. After the load had been lifted several feet, one of the tag lines "got slack," and the bundle began to swing toward plaintiff. According to plaintiff, he retreated as far as he could looking for an escape route, but the bundle hit him and knocked him down 15 feet to the street below.

Plaintiff brought this action alleging violations of, inter alia, Labor Law Sec. 240(1) and Sec. 241(6). Petrocelli commenced a third‑party action against W & W Glass and Metal Sales seeking contractual and common‑law indemnification, and W & W Glass asserted a cross claim against Metal Sales for contractual indemnification. The parties then filed various motions seeking summary judgment. By a decision entered on or about December 2, 2010, the motion court dismissed plaintiff's Sec. 240(1) claim, concluding that Petrocelli was not a general contractor or agent under the Labor Law. The court also dismissed the Sec. 241(6) claim finding that the Industrial Code provision relied upon by plaintiff was not specific enough. As for the indemnification claims, the court dismissed Petrocelli's claims for common‑law and contractual indemnification against W & W Glass and for contractual indemnification against Metal Sales, and granted W & W Glass's cross motion for contractual indemnification against Metal Sales. These appeals followed.

The motion court should have granted summary judgment to plaintiff on his Labor Law Sec. 240(1) claim. Under that section, owners, general contractors and their agents have "a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites" (McCarthy v. Turner Constr., Inc., 17 N.Y.3d 369, 374, 929 N.Y.S.2d 556, 953 N.E.2d 794 [2011]). To establish liability on a Labor Law Sec. 240(1) cause of action, a plaintiff is required to show that the statute was violated and that the violation was a proximate cause of his injuries Harris v. City of New York, 83 A.D.3d 104, 108, 923 N.Y.S.2d 2 [2011]).

Here, plaintiff asked his supervisor for a ladder but was told that one was not needed. He specifically explained to the supervisor that he did not like being on top of the bundles without a ladder because there was no way to get down. Plaintiff testified that when the bundle started swinging toward him, he retreated. Since there was no ladder, he had no way to get off the bundles. Thus, plaintiff has established that the absence of a ladder was a proximate cause of the accident. Since Petrocelli and third‑party defendants (defendants) point to no evidence challenging or contradicting plaintiff's assertions, plaintiff should have been granted summary judgment on his Sec. 240(1) claim (see e.g. Roman v. Hudson Tel. Assoc., 11 A.D.3d 346, 784 N.Y.S.2d 31 [2004]).

Aside from Petrocelli's liability for failing to provide a ladder to prevent plaintiff's fall, Petrocelli is independently liable under Sec. 240(1) for failing to provide a secure method of hoisting the bundles. In addition to "falling worker" cases, Labor Law Sec. 240(1) applies where a plaintiff is struck by a falling object that was improperly hoisted or inadequately secured (see Runner v. New York Stock Exch., Inc., 13 N.Y.3d 599, 604, 895 N.Y.S.2d 279, 922 N.E.2d 865). Thus, Sec. 240(1) "was designed to prevent those types of accidents in which the ... hoist ... proved inadequate to shield the injured worker from harm directly flowing from the application of the force of gravity to an object" (id. [internal quotation marks omitted]).

Here, the harm plaintiff suffered was the direct consequence of the application of the force of gravity to the bundle that was being hoisted (see Runner at 604, 895 N.Y.S.2d 279, 922 N.E.2d 865; Harris at 109_110, 923 N.Y.S.2d 2; Ray v. City of New York, 62 A.D.3d 591, 880 N.Y.S.2d 37 [2009]). The undisputed testimony in the record establishes that after the bundle began its ascent, one of the tag lines "got slack," causing the load to swing toward plaintiff. Thus, plaintiff has shown that the hoist proved inadequate to shield him from harm, and defendants point to no evidence in opposition that would create an issue of fact. Accordingly,plaintiff was entitled to summary judgment on his Sec. 240(1) claim.

There is no merit to defendants' contention that plaintiff's accident is outside the scope of Sec. 240(1) because it resulted from a usual and ordinary danger of a construction site. Plaintiff's fall from a height of 15-16 feet above the ground constitutes precisely the type of elevation‑related risk envisioned by the statute (see Intelisano v. Sam Greco Constr., Inc., 68 A.D.3d 1321, 890 N.Y.S.2d 683 [2009] [the plaintiff's fall while unloading 10-foot high bundles of insulation from a flatbed trailer constitutes an elevation‑related risk greater than merely falling from the bed of the trailer]; Ford v. HRH Constr. Corp., 41 A.D.3d 639, 838 N.Y.S.2d 636 [2007] [fall from the top of a stack of curtain wall panels on a flatbed truck within the scope of Sec. 240(1)]; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 937 N.Y.S.2d 157, 960 N.E.2d 948 [2011] [declining to dismiss Sec. 240(1) claim where the plaintiff fell six feet off the edge of a dumpster]).

There is no plausible view of the evidence that plaintiff's own acts or omissions were the sole proximate cause of the accident (see Vergara v. SS 133 W. 21, LLC, 21 A.D.3d 279, 281, 800 N.Y.S.2d 134 [2005]). Defendants argue, pointing to an accident report in the record, that plaintiff was solely to blame because he jumped onto the truck bed and then onto the street. Whether plaintiff was hit by the swinging bundle or jumped to get out of its way, it cannot be said that plaintiff was the sole proximate cause of his injuries (see e.g. Sherman v. Piotrowski Bldrs., 229 A.D.2d 959, 645 N.Y.S.2d 244 [1996]; Cosban v. New York City Tr. Auth., 227 A.D.2d 160, 161, 641 N.Y.S.2d 838 [1995]; Lockwood v. National Valve Mfg. Co., 143 A.D.2d 509, 533 N.Y.S.2d 44 [1988]).

The court erred in dismissing plaintiff's claim under Labor Law Sec. 241(6). 12 NYCRR 23-6.l(h) provides that "[l]oads which have a tendency to swing or turn freely during hoisting shall be controlled by tag lines." This Industrial Code provision "sets forth a specific standard of conduct and not simply a recitation of common‑law safety principles" (St. Louis v. Town of N. Elba, 16 N.Y.3d 411, 414, 923 N.Y.S.2d 391, 947 N.E.2d 1169 [2011]). We recognize that other Courts have concluded that the regulation is not sufficiently specific to establish a Sec. 241(6) violation (see Morrison v. City of New York, 5 A.D.3d 642, 643, 774 N.Y.S.2d 763 [2d Dept 2004]; Smith v. Homart Dev. Co., 237 A.D.2d 77, 80, 666 N.Y.S.2d 218 [3d Dept 1997] ). However, we have previously found that analogous regulations (see 12 NYCRR 23-8.2[c][3] ["A tag or restraint line shall be used when rotation or swinging of any load being hoisted by a mobile crane may create a hazard"] ) can give rise to liability under Sec. 241(6) (see McCoy v. Metropolitan Transp. Auth., 38 A.D.3d 308, 309, 832 N.Y.S.2d 26 [2007]; Cammon v. City of New York, 21 A.D.3d 196, 201, 799 N.Y.S.2d 455 [2005]). Although tag lines were used here, there is sufficient evidence that the tag lines did not properly control the movement of the load as it was lifted. Thus, a jury should be permitted to determine whether plaintiff may recover under Sec. 241(6).

Defendants unpersuasively argue that Petrocelli was not a general contractor for purposes of liability under Labor Law Sec. 240(1) and Sec. 241(6). The record shows that Petrocelli was delegated plenary authority over the construction work at the site, which included the authority to supervise and control the work performed by its subcontractors, and was therefore a statutory agent of the owner or general contractor of the work site liable under the Labor Law (see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 445 N.Y.S.2d 127, 429 N.E.2d 805 [1981]). Moreover, Petrocelli demonstrated this authority by subcontracting all curtain wall, glass, stone & metal work to W & W Glass, which engaged plaintiff's employer, Metal Sales, to unload, distribute and erect the curtain wall panels at the site (see Weber v. Baccarat, Inc., 70 A.D.3d 487, 896 N.Y.S.2d 12 [2010]; Williams v. Dover Home Improvement, 276 A.D.2d 626, 714 N.Y.S.2d 318 [2000]). Whether Petrocelli actually supervised plaintiff is irrelevant (see Burke v. Hilton Resorts Corp., 85 A.D.3d 419, 420, 924 N.Y.S.2d 358 [2011]).

The motion court properly dismissed Petrocelli's claim for common‑law indemnification against W & W Glass. To be entitled to common‑law indemnification, a party must show (1) that it has been held vicariously liable without proof of any negligence or actual supervision on its part; and (2) that the proposed indemnitor was either negligent or exercised actual supervision or control over the injury‑producing work (see McCarthy v. Turner Constr., Inc., 17 N.Y.3d at 377-378, 929 N.Y.S.2d 556, 953 N.E.2d 794; Reilly v. DiGiacomo & Son, 261 A.D.2d 318, 690 N.Y.S.2d 424 [1999]).

Petrocelli has met the first prong of the test. There is no showing that Petrocelli was negligent, and Petrocelli's liability is purely vicarious. However, there is no evidence in the record that W & W Glass was either negligent or actually supervised or controlled plaintiff's work. It is undisputed that W & W Glass did not perform the installation of the curtain wall panels; that work was subcontracted out to Metal Sales, plaintiff's employer. On the day of the accident, the unloading of the panels from the truck was supervised and directed by a Metal Sales foreman. Although W & W Glass's foreman was on the work site that day, Petrocelli points to no evidence showing that he was present when plaintiff's accident occurred. More importantly, there is no proof that he, or any other W & W Glass employee, actually supervised or controlled plaintiff's work. Indeed, W & W Glass's president testified that its foreman was only responsible for coordinating the delivery of the panels, and was not required to remain during the unloading.

Petrocelli argues that common‑law indemnification is warranted because W & W Glass was contractually required to supervise plaintiff's work. However, in McCarthy, the Court of Appeals made clear that "a party's ... [contractual] authority to supervise the work and implement safety procedures is not alone a sufficient basis for requiring common‑law indemnification" (17 N.Y.3d at 378, 929 N.Y.S.2d 556, 953 N.E.2d 794). Rather, liability can only be imposed against a party who exercises actual supervision of the injury‑producing work (id. at 376, 378, 929 N.Y.S.2d 556, 953 N.E.2d 794). Since there is no view of the evidence that W & W Glass actually supervised or controlled plaintiff's work, or was otherwise negligent, Petrocelli's common‑law indemnification claim was correctly dismissed.

However, the motion court should not have dismissed Petrocelli's claim for contractual indemnification against W & W Glass. The contract between the parties requires W & W Glass to indemnify Petrocelli for claims arising out the performance of W & W Glass's work, but only to the extent caused by the negligent acts or omissions of W & W Glass, its sub‑subcontractors (i.e., Metal Sales), or anyone directly or indirectly employed by them. Thus, the indemnification provision is triggered if the accident was caused by the negligence of either W & W Glass or Metal Sales, or their employees. Although the record is devoid of proof of W & W's negligence, there is evidence that the accident may have been caused by the negligence of the Metal Sales's employees who did not properly control the tag lines. Thus, the contractual indemnification claim against W & W Glass should not have been dismissed.

There is no merit to Petrocelli's contention that it is entitled to summary judgment on this claim. First, Petrocelli argues that the record establishes Metal Sales's negligence as a matter of law based on the theory of res ipsa loquitur. In response, W & W Glass maintains that res ipsa is not applicable to the facts of this case. Res ipsa loquitur is a form of circumstantial evidence that creates a permissible inference of negligence that may be accepted or rejected by the factfinder (Tora v. GVP AG, 31 A.D.3d 341, 819 N.Y.S.2d 730 [2006]). The only instance when res ipsa can be established as a matter of law is "when the plaintiff's circumstantial proof is so convincing and the defendant's response so weak that the inference of [the] defendant's negligence is inescapable" (Morejon v. Rais Constr. Co., 7 N.Y.3d 203, 209, 818 N.Y.S.2d 792, 851 N.E.2d 1143 [2006]). We need not decide whether res ipsa loquitur applies here because even if it did, it cannot be said that the inference of Metal Sales's negligence is inescapable.

Next, Petrocelli contends that W & W Glass, during motion practice below, made a judicial admission that Metal Sales was negligent. Specifically, Petrocelli maintains that W & W Glass's argument before the motion court that plaintiff was the sole proximate cause of the accident constitutes a judicial admission of plaintiff's negligence. Thus, according to Petrocelli, W & W Glass has admitted Metal Sales's negligence under a respondeat superior theory. However, in order to constitute a judicial admission, the statement must be one of fact (People v. Brown, 98 N.Y.2d 226, 232 n. 2, 746 N.Y.S.2d 422, 774 N.E.2d 186 [2002]; GJF Constr., Inc. v. Sirius Am. Ins. Co., 89 A.D.3d 622, 624, 934 N.Y.S.2d 697 [2011]; Rahman v. Smith, 40 A.D.3d 613, 615, 835 N.Y.S.2d 404 [2007]). Here, the legal arguments made by W & W Glass's counsel in its motion papers below do not constitute judicial admissions (see Mesler v. Podd, LLC, 89 A.D.3d 1533, 1536, 933 N.Y.S.2d 493 [2011]; Rahman at 615, 835 N.Y.S.2d 404).

The motion court properly granted W & W Glass's motion for summary judgment on its contractual indemnification claim against Metal Sales. Metal Sales and W & W Glass entered into a purchase order for the unloading and erection of the curtain wall panels. The indemnity provision in that order provides that Metal Sales agrees to indemnify W & W Glass for claims "arising directly or indirectly out of this order," and requires no showing of negligence by Metal Sales. Since there is no question that plaintiff's accident arose out of the purchase order, W & W Glass is entitled to be indemnified (see Velez v. Tishman Foley Partners, 245 A.D.2d 155, 666 N.Y.S.2d 591 [1997]). Because we have found that W & W Glass was not negligent, enforcement of the contractual indemnification provision does not run afoul of General Obligations Law Sec. 5-322.1 (see Itri Brick & Concrete Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 786, 795 n. 5, 658 N.Y.S.2d 903, 680 N.E.2d 1200 [1997]; Reilly v. Newireen Assocs., 303 A.D.2d 214, 224, 756 N.Y.S.2d 192 [2003], lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 235, 795 N.E.2d 1244 [2003]; Velez, 245 A.D.2d at 157, 666 N.Y.S.2d 591).

Metal Sales's motion for summary judgment dismissing Petrocelli's claim for contractual indemnification was properly granted. Petrocelli and Metal Sales were not in contractual privity with each other, and the purchase order between W & W Glass and Metal Sales does not make Petrocelli a third‑party beneficiary thereof, nor does it incorporate by reference the terms of the subcontract between Petrocelli and W & W Glass (see Vargas v. New York City Tr. Auth., 60 A.D.3d 438, 440, 874 N.Y.S.2d 446 [2009]).

Accordingly, the order of the Supreme Court, New York County (Martin Shulman, J.), entered or on about December 2, 2010, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for partial summary judgment on his Labor Law Sec. 240(1) claim, granted the cross motions of defendant Petrocelli Construction, Inc. and third‑party defendants W & W Glass Systems, Inc. and Metal Sales Co., Inc. for summary judgment dismissing plaintiff's Labor Law Sec. 240(1) and Sec. 241(6) claims, denied Petrocelli's cross motion for summary judgment on its common‑law and contractual indemnification claims against W & W Glass Systems, Inc. and for contractual indemnification against Metal Sales, granted W & W Glass' cross motion for summary judgment dismissing Petrocelli's claims for common law and contractual indemnification against it, granted Metal Sales' cross motion for summary judgment dismissing Petrocelli's claim for contractual indemnification against it, and granted W & W Glass' cross motion for contractual indemnification against Metal Sales as to liability, should be modified, on the law, to reinstate plaintiff's Labor Law Secs. 240(1) and 241(6) claims, grant plaintiff's motion for summary judgment as to liability on his Sec. 240(1) claim against Petrocelli, reinstate Petrocelli's claim for contractual indemnification against W & W Glass, and otherwise affirmed, without costs. The appeal from the order of the same court and Justice, entered April 12, 2011, which granted plaintiff's motion to reargue, and, upon reargument, adhered to the prior order, should be dismissed, without costs, as academic.

Order, Supreme Court, New York County (Martin Shulman, J.), entered on or about December 2, 2010, modified, on the law, to reinstate plaintiff's Labor Law Secs. 240(1) and 241(6) claims, grant plaintiff summary judgment as to liability on his Sec. 240(1) claim against Petrocelli, reinstate Petrocelli's claim for contractual indemnification against W & W Glass, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered April 12, 2011, dismissed, without costs, as academic.

Opinion by Richter, J. All concur.

DEFENDANT LOSES SUMMARY JUDGMENT MOTION AGAINST WORKER WHO TRIPPED-AND-FELL ON BRICK UNDER PLASTIC COVERING NEWLY‑POURED CONCRETE

Gary E. Rosenberg — Sat, 12 May 2012 17:30:00 GMT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Garry M. White v. Village of Port Chester

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident lawyer)

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RELATED POSTS:

WORKER WHO TRIPPED OVER HOSE AT RAILROAD CAR REPAIR SHOP NOT PROTECTED BY NYS LABOR LAW; SUBCONTRACTOR DENIED SUMMARY JUDGMENT ON QUESTION OF NEGLIGENCE (Posted by Queens accident lawyer Gary E. Rosenberg on May 11, 2012)

CONTRACTOR NOT LIABLE TO PEDESTRIAN WHO TRIPPED AND FELL ON HOLE IN ROADWAY (Posted by Queens accident lawyer Gary E. Rosenberg on May 7, 2012)

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Separate motions by the defendants Etre Associates, Ltd., ELQ Industries, and B.M.B. Leasing Corporation, and the defendants Village of Port Chester, Port Chester IDA, G & S Investors, G & S Port Chester, LLC, G & S Investors/Jersey City, L.P., G & S Investors/Jersey City II, L.P., G & S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., and Farmingdale Maintenance Services, Inc., for leave to reargue an appeal from an order of the Supreme Court, Westchester County, entered January 28, 2010, which was determined by a decision and order of this Court dated May 10, 2011.

Upon the papers filed in support of the motions and the papers filed in opposition thereto, it is

ORDERED that the motions are granted and, upon reargument, the decision and order of this Court dated May 10, 2011 (White v. Village of Port Chester, 84 A.D.3d 946, 922 N.Y.S.2d 534) is recalled and vacated, and the following decision and order is substituted therefor:

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.), entered January 28, 2010, as granted those branches of the motion of the defendants Village of Port Chester, Port Chester IDA, G & S Investors, G & S Port Chester, LLC, G & S Investors/Jersey City, L.P., G & S Investors/Jersey City II, L.P., G & S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., and Farmingdale Maintenance Services, Inc., which were for summary judgment dismissing the Labor Law Sec. 200 and common‑law negligence causes of action and so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against them, granted those branches of the separate motion of the defendant March Associates, Inc., which were for summary judgment dismissing the Labor Law Sec. 200 and common‑law negligence causes of action and so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against it, granted those branches of the separate motion of the defendants Etre Associates, Ltd., ELQ Industries, and B.M.B Leasing Corporation which were for summary judgment dismissing the Labor Law Sec. 200 and common‑law negligence causes of action insofar as asserted against the defendant Etre Associates, Ltd., and so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against them, granted that branch of the separate motion of the defendant Orange County Ironworks, LLC, which was for summary judgment dismissing so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against it, and granted that branch of the separate motion of the defendant A.G. Construction Corporation which was for summary judgment dismissing so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against it.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the motion of the defendants Village of Port Chester, Port Chester IDA, G & S Investors, G & S Port Chester, LLC, G & S Investors/Jersey City, L.P., G & S Investors/Jersey City II, L.P., G & S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., and Farmingdale Maintenance Services, Inc., which were for summary judgment dismissing the Labor Law Sec. 200 and common‑law negligence causes of action and so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against them and substituting therefor provisions denying those branches of the motion, (2) by deleting the provisions thereof granting those branches of the motion of the defendants Etre Associates, Ltd., ELQ Industries, and B.M.B Leasing Corporation which were for summary judgment dismissing the Labor Law Sec. 200 and common‑law negligence causes of action insofar as asserted against the defendant Etre Associates, Ltd., and so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against them and substituting therefor provisions denying those branches of the motion, (3) by deleting the provision thereof granting that branch of the motion of the defendant Orange County Ironworks, LLC, which was for summary judgment dismissing so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against it and substituting therefor a provision denying that branch of the motion, and (4) by deleting the provision thereof granting that branch of the motion of the defendant A.G. Construction Corporation which was for summary judgment dismissing so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against it and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the defendant March Associates, Inc., payable by the plaintiffs, and one bill of costs to the plaintiffs payable by the defendants Village of Port Chester, Port Chester IDA, G & S Investors, G & S Port Chester, LLC, G & S Investors/Jersey City, L.P., G & S Investors/Jersey City II, L.P., G & S Investors/Willow Park, L.P., Willow Park Enterprises, Inc., HR Construction and Renovations, Inc., and Farmingdale Maintenance Services, Inc., and the defendants Etre Associates, Ltd., ELQ Industries, and B.M.B. Leasing Corporation appearing separately and filing separate briefs, and the defendant Orange County Ironworks, LLC, and the defendant A.G. Construction Corporation.

As part of an urban renewal project, the defendant Village of Port Chester, through Port Chester IDA, acquired certain real property, which it leased to a corporate entity known as G & S Port Chester, LLC (hereinafter G & S). G & S entered into agreements with several construction contractors, including the defendant March Associates, Inc. (hereinafter March Associates), as general contractor in the construction of the interior portions of a building known as "retail G," and the defendant Etre Associates, Ltd. (hereinafter Etre), as contractor of the roadway and sidewalk areas outside retail G. Etre hired the defendant A.G. Construction Corporation (hereinafter A.G. Construction) to assist in the installation of the sidewalk by pouring the concrete.

The injured plaintiff, an employee of a nonparty trucking company, picked up steel from the defendant Orange County Ironworks, LLC (hereinafter Orange County), and delivered it to the area outside retail G, parking his truck alongside a sidewalk area where freshly poured concrete was covered with a plastic sheet that extended into the roadway. In order to reach the chains that secured the steel to the truck, the injured plaintiff stepped onto the edge of the plastic that extended into the road, tripped and fell. After he fell, the injured plaintiff pulled back the plastic sheet and saw a brick laying there, and another brick about four feet away. The injured plaintiff testified at his deposition that the bricks "were folded up inside the plastic." The injured plaintiff and his wife, suing derivatively (hereinafter together the plaintiffs), commenced this action against the Village of Port Chester, Port Chester IDA, G & S, and related entities (hereinafter collectively the Port Chester defendants), along with March Associates, Etre and its related entities ELQ Industries (hereinafter ELQ) and B.M.B. Leasing Corporation (hereinafter B.M.B.), Orange County, and A.G. Construction, alleging violations of Labor Law Secs. 200, 241(6), and common‑law negligence.

Where, as here, the injured plaintiff's accident arose not from the manner in which the work was performed, but rather from an allegedly dangerous condition at the work site, liability for a violation of Labor Law Sec. 200 and common‑law negligence will be imposed if the property owner created the condition or had actual or constructive notice of it, and failed to remedy the condition within a reasonable amount of time (see Slikas v. Cyclone Realty, LLC, 78 A.D.3d 144, 147, 908 N.Y.S.2d 117; Aragona v. State of New York, 74 A.D.3d 1260, 1260-1261, 905 N.Y.S.2d 237; Bridges v. Wyandanch Community Dev. Corp., 66 A.D.3d 938, 940, 888 N.Y.S.2d 142).

Here, the Port Chester defendants failed to satisfy their prima facie burden of establishing their entitlement to judgment as a matter of law. The Port Chester defendants failed to offer sufficient proof as to the last time they inspected the sidewalk or that the brick folded up inside the plastic sheet could not have been discovered upon a reasonable inspection (see Colon v. Bet Torah, Inc., 66 A.D.3d 731, 732, 887 N.Y.S.2d 611; cf. Lee v. Bethel First Pentecostal Church of Am., 304 A.D.2d 798, 799-800, 762 N.Y.S.2d 80).

A general contractor may be held liable in common‑law negligence and under Labor Law Sec. 200 if it had control over the work site and actual or constructive notice of the dangerous condition (see Bridges v. Wyandanch Community Dev. Corp., 66 A.D.3d at 940, 888 N.Y.S.2d 142; Keating v. Nanuet Bd. of Educ., 40 A.D.3d 706, 707, 835 N.Y.S.2d 705).

Here, Etre, as the contractor hired to install the sidewalk, failed to establish, prima facie, that it lacked control over the sidewalk and, further, failed to establish, prima facie, that it neither created nor had actual or constructive notice of the alleged dangerous condition (see Harsch v. City of New York, 78 A.D.3d 781, 783, 910 N.Y.S.2d 540).

However, March Associates, as the contractor for six interior spaces at the subject construction site demonstrated, prima facie, that it lacked control over the sidewalk (see Mugavero v. Windows By Hart, Inc., 69 A.D.3d 694, 695, 894 N.Y.S.2d 448). In opposition, the plaintiffs failed to raise a triable issue of fact.

Labor Law Sec. 241(6) imposes a nondelegable duty on owners, contractors, and their agents to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor (see Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 501-502, 601 N.Y.S.2d 49, 618 N.E.2d 82; Markey v. C.F.M.M. Owners Corp., 51 A.D.3d 734, 737, 858 N.Y.S.2d 293). In order to hold a subcontractor or statutory agent of the owner or general contractor absolutely liable under Labor Law Sec. 241, there must be a showing that the subcontractor or agent had the authority to supervise and control the work giving rise to these duties (see Russin v. Louis N. Picciano & Son, 54 N.Y.2d 311, 318, 445 N.Y.S.2d 127, 429 N.E.2d 805; Soltes v. Brentwood Union Free School Dist., 47 A.D.3d 804, 805, 849 N.Y.S.2d 628; Everitt v. Nozkowski, 285 A.D.2d 442, 443, 728 N.Y.S.2d 58). Here, Etre, ELQ, and B.M.B. failed to establish, prima facie, that they lacked the authority to supervise and control the work giving rise to the injured plaintiff's accident (see Tomyuk v. Junefield Assoc., 57 A.D.3d 518, 520-521, 868 N.Y.S.2d 731; Kelly v. LeMoyne Coll., 199 A.D.2d 942, 943, 606 N.Y.S.2d 376). However, March Associates met its prima facie burden of establishing its entitlement to judgment as a matter of law and, in opposition, the plaintiffs failed to raise a triable issue of fact.

Since the injured plaintiff was in the course of delivering materials for use at the construction site, and Labor Law Sec. 241(6) applies to workers and all those lawfully frequenting the construction site, the Port Chester defendants, along with Etre, ELQ, and B.M.B., failed to eliminate all triable issues of fact as to whether the injured plaintiff was engaged in construction work and, thus, entitled to the protection of Labor Law Sec. 241(6) (see Simms v. Elm Ridge Assoc., 259 A.D.2d 538, 539, 686 N.Y.S.2d 469; Williams v. G.H. Dev. & Constr. Co., 250 A.D.2d 959, 961, 672 N.Y.S.2d 937; cf. Vernieri v. Empire Realty Co., 219 A.D.2d 593, 595, 631 N.Y.S.2d 378).

The plaintiffs' cause of action to recover damages pursuant to Labor Law Sec. 241(6) is premised on a violation of 12 NYCRR 23-1.7(e)(2), which is a sufficiently specific, positive command (see Lane v. Fratello Constr. Co., 52 A.D.3d 575, 576, 860 N.Y.S.2d 177). This provision of the Industrial Code was adequately pleaded in the plaintiffs' bill of particulars. Moreover, contrary to the Supreme Court's determination, the Port Chester defendants, Etre, ELQ, B.M.B., Orange County, and A.G. Construction, failed to establish, prima facie, that 12 NYCRR 23-1.7(e)(2) is inapplicable to the facts of this case (see Treu v. Cappelletti, 71 A.D.3d 994, 998, 897 N.Y.S.2d 199). In this regard, the speculative deposition testimony of the injured plaintiff regarding the brick's purpose was insufficient to establish, as a matter of law, that the brick was not debris but, rather, was integral to and "consistent with the work being performed" (Mott v. Tromel Constr. Corp., 79 A.D.3d 829, 831, 912 N.Y.S.2d 685 [internal quotation marks omitted]; see Jeter v. Seagull Assoc., Inc., 43 A.D.3d 871, 872, 841 N.Y.S.2d 372). Moreover, the deposition testimony of certain defense witnesses familiar with the work was that it was not appropriate to use bricks to hold down a plastic sheet over freshly poured concrete and that, as was used in other areas over the sheet, two‑by‑four or two‑by‑six pieces of wood were appropriate. Thus, under these circumstances, triable issues of fact exist as to whether the brick was debris or integral to and "consistent with the work being performed" (see Aragona v. State of New York, 74 A.D.3d 1260, 905 N.Y.S.2d 237; Riley v. J.A. Jones Contr., Inc., 54 A.D.3d 744, 745, 865 N.Y.S.2d 225; Lenard v. 1251 Ams. Assoc., 241 A.D.2d 391, 393, 660 N.Y.S.2d 416).

The parties' remaining contentions either are academic in light of our determination or without merit.

Accordingly, the Supreme Court properly awarded summary judgment dismissing the Labor Law Sec. 200 and common‑law negligence causes of action and so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against March Associates. However, the Supreme Court should not have awarded summary judgment dismissing so much of the Labor Law Sec. 241(6) cause of action as was predicated upon an alleged violation of 12 NYCRR 23-1.7(e)(2) insofar as asserted against the Port Chester defendants, Etre, ELQ, B.M.B., Orange County, and A.G. Construction. Nor should the Supreme Court have awarded summary judgment dismissing the Labor Law Sec. 200 and common‑law negligence causes of action insofar as asserted against the Port Chester defendants and Etre.

WORKER WHO TRIPPED OVER HOSE AT RAILROAD CAR REPAIR SHOP NOT PROTECTED BY NYS LABOR LAW; SUBCONTRACTOR DENIED SUMMARY JUDGMENT ON QUESTION OF NEGLIGENCE

Gary E. Rosenberg — Fri, 11 May 2012 17:25:00 GMT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Jose J. Sotomayer v. Metropolitan Transportation Authority

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Brooklyn injury attorney)

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RELATED POSTS:

INJURED WORKER'S SCAFFOLD (LABOR LAW) CLAIMS DISMISSED BECAUSE OF HOMEOWNER'S EXCEPTION (Posted by Brooklyn injury attorney Gary E. Rosenberg on May 9, 2012)

ELECTRICIAN'S NEW YORK LABOR LAW CLAIM DENIED WHERE HE FELL FROM LADDER WHILE HANGING A LIGHT (Posted by Brooklyn injury attorney Gary E. Rosenberg on Mar 25, 2012)

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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated April 11, 2011, as granted those branches of the motion of the defendant Bombardier Transit Corporation, and the cross motion of the defendants Metropolitan Transportation Authority and Long Island Rail Road Company which were for summary judgment dismissing the cause of action alleging a violation of Labor Law Sec. 241(6) insofar as asserted against them, and those branches of the cross motion of the defendant Hudson Machine Works, Inc., which were for summary judgment dismissing the causes of action alleging common‑law negligence and violations of Labor Law Secs. 200 and 241(6) insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the cross motion of the defendant Hudson Machine Works, Inc., which were for summary judgment dismissing the causes of action alleging common‑law negligence and a violation of Labor Law Sec. 200 insofar as asserted against it and substituting therefor a provision denying those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff to the defendant Bombardier Transit Corporation and the defendants Metropolitan Transportation Authority and Long Island Rail Road Company, appearing separately and filing separate briefs, and one bill of costs payable by the defendant Hudson Machine Works, Inc., to the plaintiff.

The plaintiff, a materials coordinator employed by a corporate affiliate of the defendant Bombardier Transit Corporation (hereinafter BTC), was allegedly injured when he tripped over a water hose while working at a facility used to perform maintenance and repair work on passenger rail cars owned by the defendants Metropolitan Transportation Authority and Long Island Rail Road Company (hereinafter together MTA/LIRR). The defendant Hudson Machine Works, Inc. (hereinafter Hudson), was a subcontractor working at the facility.

The Supreme Court properly granted those branches of the motion of BTC and cross motions of the MTA/LIRR and Hudson which were to dismiss the causes of action alleging violations of Labor Law Sec. 241(6) insofar as asserted against them. MTA/LIRR, BTC, and Hudson established their prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff, who, as a materials coordinator was engaged in the requisitioning and gathering of parts used by others in the course of performing maintenance and modification of existing railroad cars, was not engaged in construction, excavation, or demolition work (see Esposito v. New York City Indus. Dev. Agency, 1 N.Y.3d 526, 770 N.Y.S.2d 682, 802 N.E.2d 1080; Nagel v. D & R Realty Corp., 99 N.Y.2d 98, 752 N.Y.S.2d 581, 782 N.E.2d 558; Oser v. Truck King Intl., 60 A.D.3d 832, 874 N.Y.S.2d 385; Gallello v. MARJ Distribs., Inc., 50 A.D.3d 734, 855 N.Y.S.2d 602; Deoki v. Abner Props. Co., 48 A.D.3d 510, 852 N.Y.S.2d 261). In opposition, the plaintiff failed to raise a triable issue of fact.

However, the Supreme Court erred in granting those branches of Hudson's cross motion which were for summary judgment dismissing the causes of action alleging common‑law negligence and a violation of Labor Law Sec. 200 insofar as asserted against it. Labor Law Sec. 200 codifies the common‑law duty of an owner or contractor to provide employees with a safe place to work (see Comes v. New York State Elec. & Gas Corp., 82 N.Y.2d 876, 877, 609 N.Y.S.2d 168, 631 N.E.2d 110; Lane v. Fratello Constr. Co., 52 A.D.3d 575, 576, 860 N.Y.S.2d 177). Where a plaintiff's injuries stem not from the manner in which the work was being performed, but, rather, from a dangerous condition on the premises, a contractor may be liable in common‑law negligence and under Labor Law Sec. 200 only if it had control over the work site and either created the dangerous condition or had actual or constructive notice of it (see Martinez v. City of New York, 73 A.D.3d 993, 998, 901 N.Y.S.2d 339; Bridges v. Wyandanch Community Dev. Corp., 66 A.D.3d 938, 940, 888 N.Y.S.2d 142; Van Salisbury v. Elliott-Lewis, 55 A.D.3d 725, 726, 867 N.Y.S.2d 454; Keating v. Nanuet Bd. of Educ., 40 A.D.3d 706, 708, 835 N.Y.S.2d 705). Here, contrary to the Supreme Court's determination, Hudson failed to establish, prima facie, that it did not have control over the work site or that it did not create or have actual or constructive notice of the alleged dangerous condition (see Harsch v. City of New York, 78 A.D.3d 781, 783, 910 N.Y.S.2d 540; Van Salisbury v. Elliott-Lewis, 55 A.D.3d at 726, 867 N.Y.S.2d 454). Accordingly, those branches of Hudson's cross motion which were for summary judgment dismissing the causes of action alleging common‑law negligence and a violation of Labor Law Sec. 200 insofar as against it should have been denied, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In view of our determination, we need not address the plaintiff's remaining contention.

LAWYER'S SLOPPY SUPERVISION OF FIRM'S ESCROW BANK ACCOUNT MISSES THEFTS, COSTS CLIENTS MILLIONS OF DOLLARS; HE'S SUSPENDED

Gary E. Rosenberg — Thu, 10 May 2012 17:30:00 GMT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: In the Matter of Peter J. Galasso

Date: Feb. 21, 2012

Punishment: Two-year suspension of law license

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Brooklyn accident attorney)

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RELATED POSTS:

LAWYER ADMITS MESSING WITH CLIENT MONEY; RESIGNS FROM BAR (Posted by Brooklyn accident attorney Gary E. Rosenberg on January 11, 2008)

ATTORNEY LOSES LAW LICENSE (DISBARRED) FOR STEALING CLIENT ESCROW MONEY; MENTAL PROBLEMS NO EXCUSE (Posted by Brooklyn accident attorney Gary E. Rosenberg on Nov 18, 2011)

NEW YORK ACCIDENT LAWYER SUSPENDED FOR SLOPPY ESCROW BANKING (Posted by Brooklyn accident attorney Gary E. Rosenberg on May 4, 2011)

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PER CURIAM

The Grievance Committee for the Ninth Judicial District (hereinafter the Grievance Committee) served the respondent with a petition dated January 21, 2010, containing 10 charges of professional misconduct.

Charge one alleges that the respondent breached his fiduciary duty by failing to promptly pay or deliver funds received pursuant to a written escrow agreement to the person(s) entitled to receive such funds, in violation of Code of Professional Responsibility DR 9-102(c)(4) (22 NYCRR 1200.46[c][4]).

The respondent was a partner of a law firm known as Galasso & Langione, LLP, and/or the successor firms known as Galasso Langione & Botter, LLP, and Galasso, Langione, Catterson & LoFrumento, LLP (hereinafter the Galasso Langione firm or the firm). The respondent and the Galasso Langione firm represented Stephen Baron in connection with an action for a divorce and ancillary relief commenced by Wendy Baron in the Supreme Court, Nassau County. Wendy Baron was represented by her own attorney.

Pursuant to a written escrow agreement dated June 8, 2004, the respondent acknowledged the receipt of funds totaling $4,840,862.32 representing the proceeds of the sale of a commercial property owned by Stephen Baron (hereinafter the Baron funds). The respondent executed the foregoing agreement as both the attorney for Stephen Baron and the escrow agent, and agreed to hold the funds on deposit in an interest‑bearing escrow account under the social security number of Stephen Baron "subject to further order of the Supreme Court" in connection with the underlying divorce action.

On or about June 11, 2004, the respondent, through his agents and employees, arranged for the funds to be deposited into an interest‑bearing account at Signature Bank entitled "Stephen Baron Galasso Langione LLP Escrow Agents" (hereinafter the Baron escrow account). The respondent had a fiduciary duty to safeguard the Baron funds and to promptly pay or deliver the funds, with accrued interest, to Stephen and/or Wendy Baron, following a decision of the Supreme Court, Nassau County, issued in or about November 2006, in connection with the underlying divorce action.

Stephen and Wendy Baron, through their respective attorneys and agents, demanded payment from the respondent of the Baron funds pursuant to the foregoing decision of the Supreme Court, Nassau County. To date, the respondent has failed to deliver or pay more than $4.3 million of the Baron funds to the respective parties to whom such funds are due and owing.

Charge two alleges that the respondent breached his fiduciary duty by failing to safeguard the Baron funds in violation of Code of Professional Responsibility DR 9-102(a) and DR1-102(a)(7) (22 NYCRR 1200.46[a], 1200.3[a][7]).

Between June 11, 2004, and mid‑January 2007, there were a series of internet transfers of Baron funds, totaling more than $4.3 million, from the Baron escrow account into various accounts maintained by the respondent and the Galasso Langione firm at Signature Bank incident to the respondent's practice of law and/or the Galasso Langione firm's practice of law.

Following the aforementioned transfers, the Baron funds were disbursed to the respondent, other members and employees of the Galasso Langione firm, various third parties, and various business entities. Stephen and Wendy Baron, the parties ultimately entitled to receive the Baron funds, did not consent to, or benefit from, these disbursements of their funds.

Charge three alleges that the respondent has been unjustly enriched by the use of misappropriated Baron funds for his personal benefit, in violation of Code of Professional Responsibility DR 1-102(a)(5) and (7) (22 NYCRR 1200.3 [a] [5], [7]).

The respondent knew or should have known that Baron funds transferred from the Baron escrow account into the Galasso Langione firm's Signature Bank escrow account (no. ******1612) in or about September 2004 were subsequently used to finance a $100,000 down payment in connection with the respondent's purchase of a commercial office condominium unit at 377 Oak Street, in Garden City. Moreover, the respondent knew or should have known that Baron funds transferred from the Baron escrow account into the Galasso Langione firm's Signature Bank account (no. ******2636) on or about September 21, 2005, were subsequently used to pay the $241,483.77 balance due and owing from the respondent to the seller in connection with the purchase of the Oak Street condominium unit, and to pay $22,622.60 in related closing costs.

Charge four alleges that the respondent breached his fiduciary duty by failing to provide appropriate accounts to Stephen and Wendy Baron with respect to the Baron funds entrusted to him in violation of Code of Professional Responsibility DR 9-102(c)(3) and DR1-102(a)(7) (22 NYCRR 1200.46[c] [3], 1200.3[a][7]).

Stephen and Wendy Baron, through their respective attorneys and agents, demanded an accounting from the respondent with respect to the disbursement of their misappropriated funds. The respondent has tendered partial accountings but has failed to fully account to Stephen and Wendy Baron for the disbursements of misappropriated funds following transfers of the Baron funds from the Baron escrow account to various Galasso Langione firm accounts at Signature Bank.

Charge five alleges that the respondent failed to timely comply with lawful demands for information made by the Grievance Committee in connection with an investigation of his alleged professional misconduct, in violation of Code of Professional Responsibility DR 1-102(a)(5) and (7) (22 NYCRR 1200.3[a] [5], [7]) and Rules of Professional Conduct (22 NYCRR 1200.0) rule 8.4(d) and (h).

From on or about May 12, 2008, through July 22, 2009, the petitioner made various requests for information relevant to its investigation of complaints of alleged professional misconduct by the respondent, via correspondence and subpoena.

The respondent failed to timely and fully respond and/or comply with one or more of the following requests:

(a) a written update on the status of the forensic investigation that reportedly was being undertaken by accountants hired by the Galasso Langione firm in 2007 to audit all Galasso Langione firm bank accounts for the preceding three years and to determine, inter alia, what happened to the funds misappropriated from the Baron escrow account, along with copies of any written analysis prepared by such accountants and copies of the documents used to support their findings;

(b) an accounting to trace the disbursement of Baron funds subsequent to the unauthorized transfers from the Baron escrow account to the Galasso Langione firm Signature Bank accounts for the period June 2004 through mid‑June 2007;

(c) bookkeeping records for the Galasso Langione firm's Signature Bank IOLA account (no. ******1639) and the Galasso Langione firm's M & T Bank IOLA account (no. ******9485) for the period January 1, 2004, through January 31, 2007, including records identifying the date, source, and description of each item deposited as well as the date, payee, and purpose of each withdrawal or disbursement, along with information identifying whose funds were being held on deposit in the Signature Bank IOLA account as of January 1, 2004, and the amount being held on behalf of each such person or entity; and

(d) copies of documents relating to the purchase of the office condominium located at 377 Oak Street, Unit 101, in Garden City, including the contract of sale, all documents relating to the financing obtained in connection with the purchase, the loan application, and related documents submitted to the lender in connection with the financing and credit reports.

The respondent's failure to timely and fully comply with the Grievance Committee's lawful demands for the above‑referenced information impeded and delayed the Grievance Committee's investigation.

Charge six alleges that the respondent failed to supervise a nonlawyer employee of the Galasso Langione firm, resulting in the misappropriation of the Baron funds, in violation of Code of Professional Responsibility DR 1-104(d)(2) (22 NYCRR 1200.5[d][2]).

The respondent directed the Galasso Langione firm's former bookkeeper/office manager (hereinafter the bookkeeper) to open the Baron escrow account and to maintain and reconcile all bank account statements received from Signature Bank with respect to the Baron escrow account as well as all other Galasso Langione firm Signature Bank accounts used in connection with the respondent's practice of law and/or the Galasso Langione firm's practice of law.

The respondent failed to properly supervise the Galasso Langione firm's former bookkeeper and failed to properly review, audit, and reconcile the Galasso Langione firm's Signature Bank accounts used in connection with his practice of law and/or the Galasso Langione firm's practice of law. In the exercise of reasonable management and supervisory authority, the respondent would have been aware of the unlawful and improper transfers and disbursements of the Baron funds so that remedial action could have been taken to avoid or mitigate the misappropriations of same.

Charge seven alleges that the respondent breached his fiduciary duty by failing to safeguard funds belonging to another person or persons that had been entrusted to the Galasso Langione firm incident to the firm's practice of law and by failing to promptly pay or deliver funds, received in his and/or the firm's fiduciary capacity, to the person or persons entitled to receive such funds, in violation of Code of Professional Responsibility DR 9-102(a), (c)(4) and DR 1-102(a)(7) (22 NYCRR 1200.46[a], [c][4]; 1200.3 [a][7]).

In or about December 2005 or January 2006, the Galasso Langione firm received the sum of $800,000 on behalf of the Estate of George Carroll (hereinafter the Estate) in connection with the settlement of a medical malpractice/wrongful death action. The firm's former bookkeeper was instructed to deposit the foregoing funds into an IOLA account maintained by the firm incident to the practice of law. However, the respondent failed to verify that the funds were deposited into the designated IOLA account and failed to ensure that the funds remained safely on deposit in the designated IOLA account until such time as the firm was authorized to disburse the funds to the legal representatives of the Estate.

In or about January 2007, the legal representatives of the Estate received written notice from the firm that the firm's former bookkeeper had misappropriated the funds entrusted to them on behalf of the Estate.

In or about January 2008, the firm disbursed $85,791.36 to the Estate, representing payment of a portion of the total received by the firm that remains due and owing to the Estate. The representatives of the Estate, through their attorneys, have demanded payment of the balance due and owing from the funds entrusted to the firm on behalf of the Estate. To date, neither the respondent nor the firm has paid the balance due and owing to the Estate.

Charge eight alleges that the respondent failed to supervise a nonlawyer employee of the Galasso Langione firm, resulting in the misappropriation of funds received on behalf of the Estate, in violation of Code of Professional Responsibility DR 1-104(d)(2) (22 NYCRR 1200.5[d][2] ).

The respondent permitted his former bookkeeper to handle the firm's banking and bookkeeping responsibilities and relied on the firm's former bookkeeper to reconcile the firm's IOLA accounts. However, the respondent failed to properly supervise the firm's former bookkeeper with respect to the foregoing, and failed to properly review, audit, and/or reconcile the firm's IOLA accounts. In the exercise of reasonable management and supervisory authority, the respondent would have been aware of the inappropriate handling of the firm's IOLA accounts and the unlawful and improper disbursements of funds received on behalf of the Estate so that remedial action could have been taken to avoid or mitigate the losses suffered by the Estate.

Charge nine alleges that the respondent breached his fiduciary duty by failing to safeguard funds belonging to another person or persons that had been entrusted to the Galasso Langione firm incident to the practice of law and by failing to promptly pay or deliver funds received in a fiduciary capacity to the person or persons entitled to receive those funds, in violation of Code of Professional Responsibility DR 9-102(a), (c)(4) and DR1-102(a)(7) (22 NYCRR 1200.46[a], [c][4]; 1200.3[a][7]).

In or about July 2006, the Galasso Langione firm received the sum of $175,000 on behalf of Adele Fabrizio in connection with the settlement of a personal injury action. The firm's former bookkeeper was instructed to deposit the funds into an IOLA account maintained by the firm incident to the practice of law. However, the respondent failed to verify that the funds were deposited into the designated IOLA account and failed to ensure that the funds remained safely on deposit until such time as the firm was authorized to disburse them to Ms. Fabrizio.

In or about January 2007, Ms. Fabrizio received written notice from the firm that the firm's former bookkeeper had misappropriated the funds entrusted to the firm on her behalf. Ms. Fabrizio, through her agents and/or legal representative, has demanded payment of the funds entrusted to the firm that are due and owing to her. To date, the respondent and/or the firm have failed to pay over the funds entrusted to them that remain due and owing to Ms. Fabrizio.

Charge ten alleges that the respondent failed to supervise a nonlawyer employee of the Galasso Langione firm, resulting in the misappropriation of funds received on behalf of Adele Fabrizio, in violation of Code of Professional Responsibility DR 1-104(d)(2) (22 NYCRR 1200.5[d][2]).

In the exercise of reasonable management and supervisory authority, the respondent would have been aware of the inappropriate handling of the firm's IOLA accounts, and the unlawful and improper disbursement of funds received on behalf of Ms. Fabrizio, so that remedial action could have been taken to avoid or mitigate the losses to Ms. Fabrizio.

Based upon the respondent's admissions and the evidence adduced, the Special Referee properly sustained all 10 charges. Accordingly, the petitioner's motion to confirm the Special Referee's report is granted, and the respondent's cross motion to disaffirm the Special Referee's report is denied.

In determining an appropriate measure of discipline to impose, the Court notes the respondent's testimony as to the negative impact the conduct of his bookkeeper and brother, Anthony Galasso, has had on his personal and professional life; the changes he has made with respect to his business practices; his cooperation in connection with the criminal prosecution of his bookkeeper and brother, Anthony Galasso; and his pursuit of lawsuits against, among others, Signature Bank, in an effort to reclaim the misappropriated Baron funds, as well as the funds misappropriated from the Estate and from Adele Fabrizio. In addition, the Court considered the 37 letters of good character submitted on the respondent's behalf. However, we find that the respondent failed to maintain appropriate vigilance over his firm's bank accounts, resulting in actual and substantial harm to clients (cf. Matter of Forman, 250 A.D.2d 116, 680 N.Y.S.2d 612).

Under the totality of the circumstances, the respondent is suspended from the practice of law for a period of two years.

ORDERED that the petitioner's motion to confirm the Special Referee's report is granted; and it is further,

ORDERED that the respondent's cross motion to disaffirm the Special Referee's report is denied; and it is further,

ORDERED that the respondent, Peter J. Galasso, admitted as Peter John Galasso, is suspended from the practice of law for a period of two years, commencing March 21, 2012, and continuing until further order of this Court. The respondent shall not apply for reinstatement earlier than September 23, 2013. In such application, the respondent shall furnish satisfactory proof that during said period he: (1) refrained from practicing or attempting to practice law, (2) fully complied with this opinion and order and with the terms and provisions of the written rules governing the conduct of disbarred, suspended, and resigned attorneys (22 NYCRR 691.10), (3) complied with the applicable continuing legal education requirements of 22 NYCRR 691.11(c)(2), and (4) otherwise properly conducted himself; and it is further,

ORDERED that pursuant to Judiciary Law Sec. 90, during the period of suspension and until the further order of this Court, the respondent, Peter J. Galasso, admitted as Peter John Galasso, shall desist and refrain from (1) practicing law in any form, either as principal or agent, clerk, or employee of another, (2) appearing as an attorney or counselor‑at‑law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application, or any advice in relation thereto, and (4) holding himself out in any way as an attorney and counselor‑at‑law; and it is further,

RDERED that if the respondent, Peter J. Galasso, admitted as Peter John Galasso, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency and the respondent shall certify to the same in his affidavit of compliance pursuant to 22 NYCRR 691.10(f).

INJURED WORKER'S SCAFFOLD (LABOR LAW) CLAIMS DISMISSED BECAUSE OF HOMEOWNER'S EXCEPTION

Gary E. Rosenberg — Wed, 09 May 2012 17:35:00 GMT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Michael Holifield v. Seraphim, LLC

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Brooklyn injury lawyer)

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RELATED POSTS:

CONSTRUCTION WORKER'S SUMMARY JUDGMENT MOTION UNDER N.Y.S. LABOR LAW DENIED; QUESTION OF FACT IF SCAFFOLD HAD RAILINGS (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Apr 19, 2012)

BRONX PERSONAL INJURY ATTORNEY - WORKPLACE ACCIDENTS (Posted by Brooklyn injury lawyer Gary E. Rosenberg on March 3, 2010)

LABOR LAW ACCIDENT PLAINTIFF DENIED SUMMARY JUDGMENT AFTER A-FRAME LADDER FALL DUE TO ISSUES OF FACT (Posted by Brooklyn injury lawyer Gary E. Rosenberg on Feb 6, 2012)

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In an action to recover damages for personal injuries, the defendants Seraphim, LLC, Albert Kalimian, Manda Kalimian, and Manda Kalimian 2003 Irrevocable Trust appeal, as limited by their notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), dated June 29, 2010, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and granted that branch of the plaintiff's cross motion which was to strike their first affirmative defense.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion of the defendants Seraphim, LLC, Albert Kalimian, Manda Kalimian, and Manda Kalimian 2003 Irrevocable Trust for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted, and that branch of the plaintiff's cross motion which was to strike the first affirmative defense of the defendants Seraphim, LLC, Albert Kalimian, Manda Kalimian, and Manda Kalimian 2003 Irrevocable Trust is denied as academic.

The defendant Albert Kalimian and his wife, the defendant Manda Kalimian (hereinafter together the Kalimians), created the defendant Manda Kalimian 2003 Irrevocable Trust (hereinafter the Trust) for the purpose of purchasing certain property in Muttontown, Nassau County, and placing it in trust for their two children. The Kalimians were trustees of the Trust. The property was purchased by the Trust with the intent of building a family residence and horse farm on the property. The Trust leased the property to the defendant Seraphim, LLC (hereinafter Seraphim), under a long‑term lease. Pursuant to the lease, Seraphim paid all operating expenses with respect to the property, including gas, electric, and labor for a horse stable that was constructed, and paid for all improvements on the property. The Kalimians were the sole officers of Seraphim.

Albert Kalimian hired subcontractors to perform work on the residence and barn that were constructed on the property. The plaintiff, an employee of one of the subcontractors, was assigned to put up rafters in the barn. The plaintiff allegedly was injured when a wooden plank on which he was standing broke and caused him to fall about 20 feet to the ground. The plaintiff commenced this action against the Trust, the Kalimians, and Seraphim, among others, alleging, inter alia, violations of Labor Law Secs. 240(1) and 241 (6). The Trust, Seraphim, and the Kalimians moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. In the order appealed from, the Supreme Court, inter alia, denied the motion.

Labor Law Secs. 240(1) and 241(6) apply to owners, contractors, and their agents (see Labor Law Secs. 240[1], 241[6]). However, the homeowner's exemption to liability under Labor Law Secs. 240(1) and 241(6) is available to "owners of one and two‑family dwellings who contract for but do not direct or control the work" (Labor Law Secs. 240[1], 241[6]; see Chowdhury v. Rodriguez, 57 A.D.3d 121, 126, 867 N.Y.S.2d 123). Here, the Trust, the owner of the property, demonstrated its entitlement to judgment as a matter of law with respect to the homeowner's exemption by establishing that it did not direct or control the work and that the property was intended to be used solely for residential purposes (see Castellanos v. United Cerebral Palsy Assn. of Greater Suffolk, Inc., 77 A.D.3d 879, 880, 909 N.Y.S.2d 757). The Trust demonstrated that the premises was not an income‑producing property, as any commercial benefit received from its financial arrangement with Seraphim was ancillary to the residential purpose of the property (see Bartoo v. Buell, 87 N.Y.2d 362, 639 N.Y.S.2d 778, 662 N.E.2d 1068; Castellanos v. United Cerebral Palsy Assn. of Greater Suffolk, Inc., 77 A.D.3d at 880, 909 N.Y.S.2d 757; Morocho v. Marino Enters. Contr. Corp., 65 A.D.3d 675, 885 N.Y.S.2d 99). In response to the Trust's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact.

Furthermore, the Kalimians and Seraphim demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging violations of Labor Law Secs. 240(1) and 241(6) insofar as asserted against them by establishing that they were neither an owner, contractor, or statutory agent under those provisions (see Jamindar v. Uniondale Union Free School Dist., 90 A.D.3d 612, 934 N.Y.S.2d 437; Ortiz v. I.B.K. Enters., Inc., 85 A.D.3d 1139, 1140-1141, 927 N.Y.S.2d 114). Albert Kalimian did not become a general contractor, responsible for supervising the entire construction project and enforcing safety standards, by virtue of the fact that he visited the property to check on the progress of the work and hired separate contractors to perform different aspects of the work (see Ferrero v. Best Modular Homes, Inc., 33 A.D.3d 847, 850, 823 N.Y.S.2d 477; Rodas v. Weissberg, 261 A.D.2d 465, 690 N.Y.S.2d 116). In opposition, the plaintiff failed to raise a triable issue of fact.

In his brief, the plaintiff states, with respect to his causes of action alleging common‑law negligence and violation of Labor Law Sec. 200, that he "waives" those causes of action.

Accordingly, the Supreme Court should have granted the motion of Seraphim, the Kalimians, and the Trust for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and denied that branch of the plaintiff's cross motion which was to strike the first affirmative defense of Seraphim, the Kalimians, and the Trust as academic (see South Liberty Partners, L.P. v. Town of Haverstraw, 82 A.D.3d 956, 959, 918 N.Y.S.2d 563).

PLAINTIFF INJURED WHEN ELECTRONICALLY OPERATED GATE CLOSED ON HIS HAND SUED FOR NEGLIGENCE; GATE INSTALLER'S SUMMARY JUDGMENT MOTION DENIED DUE TO ISSUES OF FACT

Gary E. Rosenberg — Tue, 08 May 2012 17:35:00 GMT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Joseph Gorham v. Reliable Fence & Supply Co., Inc.

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

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RELATED POSTS:

ACCIDENT VICTIM'S PERSONAL INJURY BURN CASE ALLOWED TO PROCEED; SHE CLAIMS THAT BACARDI "151" RUM IS A DEFECTIVE PRODUCT (Posted by Queens injury attorney Gary E. Rosenberg on Nov 23, 2011)

BROOKLYN MAN KILLED AFTER FALLS INTO DOUGH MIXING MACHINE (Posted by Queens injury attorney Gary E. Rosenberg on January 25, 2011)

FORKLIFT OPERATOR HURT WHEN BRAKES FAIL; HIS PRODUCTS LIABILITY CLAIMS AGAINST MANUFACTURER AND MAINTENANCE COMPANY DISMISSED (Posted by Queens injury attorney Gary E. Rosenberg on Oct 29, 2011)

ELEVATOR OWNER GRANTED SUMMARY JUDGMENT AND CASE DISMISSAL FOR ACCIDENT (Posted by Queens injury attorney Gary E. Rosenberg on Dec 23, 2011)

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In an action to recover damages for personal injuries, the defendant third‑party defendant, Reliable Fence & Supply Co., Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated June 18, 2010, as, upon reargument, adhered to the determination in an order dated November 10, 2009, denying its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, granting that branch of the cross motion of the defendant Premier Storage Solutions of Third Avenue, LLC, which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against that defendant, and granting those branches of the cross motion of the defendant third‑party plaintiff, Racanelli Construction Company, Inc., which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against that defendant and for summary judgment on that defendant's third‑party cause of action for contractual indemnification insofar as asserted against it, and granted that branch of the cross motion of the defendant Premier Storage Solutions of Third Avenue, LLC, which was for summary judgment on that defendant's cross claim for contractual indemnification insofar as asserted against it.

ORDERED that the appeal from so much of the order dated June 18, 2010, as, upon reargument, adhered to the determination in the order dated November 10, 2009, granting those branches of the respective cross motions of the defendant Premier Storage Solutions of Third Avenue, LLC, and the defendant third‑party plaintiff Racanelli Construction Company, Inc., which were for summary judgment dismissing the complaint insofar as asserted against each of them, and all cross claims insofar as asserted by each of them against each other, is dismissed, without costs or disbursements, as the appellant is not aggrieved thereby (see Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132); and it is further,

ORDERED that the order dated June 18, 2010, is modified, on the law, (1) by deleting the provision thereof, upon reargument, adhering to the determination in the order dated November 10, 2009, granting those branches of the cross motion of the defendant third‑party plaintiff, Racanelli Construction Company, Inc., which were for summary judgment dismissing the cross claims of the defendant third‑party defendant Reliable Fence & Supply Co., Inc., insofar as asserted against it, and for summary judgment on its third‑party cause of action for contractual indemnification against the defendant third‑party defendant, Reliable Fence & Supply Co., Inc., and substituting therefor a provision, upon reargument, vacating the determination in the order dated November 10, 2009, granting those branches of the cross motion, and thereupon denying those branches of the cross motion, and (2) by deleting the provision thereof granting that branch of the cross motion of the defendant Premier Storage Solutions of Third Avenue, LLC, which was for summary judgment on its cross claim for contractual indemnification against the defendant third‑party defendant, Reliable Fence & Supply Co., Inc., and substituting therefor a provision denying that branch of the cross motion; as so modified, the order dated June 18, 2010, is affirmed insofar as reviewed, without costs or disbursements.

On April 24, 2004, the plaintiff allegedly sustained personal injuries when an electronically operated fence closed on his hand. He commenced the instant action sounding in negligence against the defendants Premier Storage Solutions of Third Avenue, LLC (hereinafter Premier), the owner of the subject premises, Racanelli Construction Company, Inc. (hereinafter Racanelli), the general contractor, and Reliable Fence & Supply Co., Inc. (hereinafter Reliable), the installer of the fence. Thereafter, Racanelli commenced a third‑party action against, among others, Reliable.

Reliable moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Thereafter, Premier cross‑moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Racanelli also cross‑moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. In an order dated November 10, 2009, the Supreme Court, inter alia, denied Reliable's motion, granted those branches of the respective cross motions of Premier and Racannelli which were for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, and granted that branch of Racanelli's cross motion which was for summary judgment on its cross claim for contractual indemnification insofar as asserted against Reliable. In an order dated June 18, 2010, the Supreme Court, upon reargument, adhered to its prior determination, and granted that branch of Premier's cross motion which was for summary judgment on its cross claim for contractual indemnification insofar as asserted against Reliable.

Contrary to Reliable's contention, the Supreme Court, upon reargument, properly adhered to its prior determination denying that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it. A party who enters into a contract to render services may be said to have assumed a duty of care and, thus, may be potentially liable in tort to third persons where, inter alia, "the contracting party, in failing to exercise reasonable care in the performance of his duties, launche[s] a force or instrument of harm" (Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 140, 746 N.Y.S.2d 120, 773 N.E.2d 485 [internal quotation marks omitted]; see Mosca v. OCE Holding, Inc., 71 A.D.3d 1103, 1104, 898 N.Y.S.2d 204). Here, triable issues of fact exist as to whether, in allegedly failing to exercise reasonable care in the installation of the subject gate, Reliable launched a force or instrument of harm (see Martin v. Huang, 85 A.D.3d 1132, 1133, 926 N.Y.S.2d 622). Since there are triable issues of fact as to Reliable's negligence, the Supreme Court, upon reargument, also properly adhered to its prior determination denying those branches of Reliable's motion which were for summary judgment dismissing the cross claims insofar as asserted against it (id.; see Shea v. Putnam Golf, Inc., 79 A.D.3d 1013, 1015, 915 N.Y.S.2d 576; Bellefleur v. Newark Beth Israel Med. Ctr., 66 A.D.3d 807, 808, 888 N.Y.S.2d 81).

However, the Supreme Court, upon reargument, should not have adhered to its prior determination granting that branch of Racanelli's cross motion which was for summary judgment dismissing Reliable's cross claims insofar as asserted against it. Racanelli made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, the affidavit of its project manager, who stated, in effect, that Racanelli did not have control over the work site (see Soto v. City of New York, 244 A.D.2d 544, 545, 664 N.Y.S.2d 612; cf. Keating v. Nanuet Bd. of Educ., 40 A.D.3d 706, 708-709, 835 N.Y.S.2d 705). However, in opposition, Reliable raised triable issues of fact, inter alia, as to whether Racanelli had control over the work site. In this regard, Reliable submitted deposition testimony indicating that Racanelli employees inspected the subject gate to make sure that it was properly installed and that a Racanelli employee inspected all of the work of its subcontractors.

Moreover, it was premature to grant those branches of the cross motions of Premier and Racanelli which were for summary judgment on their respective cross claim and third‑party cause of action for contractual indemnification against Reliable (see Brasch v. Yonkers Constr. Co., 306 A.D.2d 508, 510_511, 762 N.Y.S.2d 626; Rodriguez v. Savoy Boro Park Assoc. Ltd. Partnership, 304 A.D.2d 738, 739, 759 N.Y.S.2d 107).

Reliable's remaining contentions are without merit.

CONTRACTOR NOT LIABLE TO PEDESTRIAN WHO TRIPPED AND FELL ON HOLE IN ROADWAY

Gary E. Rosenberg — Mon, 07 May 2012 12:44:00 GMT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Carmela Gueli v. City of New York

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Brooklyn accident lawyer)

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RELATED POSTS:

INJURED WHEN STAIRS COLLAPSE, ACCIDENT VICTIM CAN'T SUE: NO NOTICE OF DEFECT (Posted by Brooklyn accident lawyer Gary E. Rosenberg on May 6, 2011)

CITY OF NEW YORK LOSES SUMMARY JUDGMENT IN SLIP-AND-FALL ACCIDENT CASE, FOR FAILURE TO MEET ITS BURDEN AS MOVANT(Posted by Brooklyn accident lawyer Gary E. Rosenberg on Dec 29, 2011)

NO NOTICE OF CONDITION IN SUPERMARKET SLIP AND FALL; ACCIDENT VICTIM LOSES ON SUMMARY JUDGMENT (Posted by Brooklyn accident lawyer Gary E. Rosenberg on May 28, 2011)

NO "NOTICE" OF RAISED RUG ON FLOOR; CASE DISMISSED ON DEFENSE SUMMARY JUDGMENT MOTION (Posted by Brooklyn accident lawyer Gary E. Rosenberg on Nov 5, 2011)

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In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated September 16, 2010, as granted that branch of the motion of the defendant Laws Construction Corp. which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff alleges that on July 2, 2006, she sustained injuries when she tripped and fell over a hole on the roadway on 86th Street between 24th Avenue and Bay 35th Street in Brooklyn. She thereafter commenced this action against, among others, Laws Construction Corp. (hereinafter Laws), alleging that Laws negligently performed certain construction work in the general area near the accident site prior to the date of her alleged accident, which created the roadway defect over which she allegedly tripped. Laws moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it.

In support of its motion, Laws submitted an affidavit from one of its employees, who confirmed that Laws had no records indicating that it performed any work at the accident location prior to the date of the plaintiff's alleged accident and that documents from the City of New York, which were appended to his affidavit, showed that Laws began working near the accident location on August 31, 2006, which was nearly two months after the plaintiff's alleged accident. Such evidence demonstrated Laws's prima facie entitlement to judgment as a matter of law (see Perelstein v. City of New York, 43 A.D.3d 894, 841 N.Y.S.2d 630; Tillem v. Cablevision Sys. Corp., 38 A.D.3d 878, 832 N.Y.S.2d 296; Flores v. City of New York, 29 A.D.3d 356, 358, 815 N.Y.S.2d 48). In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Perelstein v. City of New York, 43 A.D.3d at 895, 841 N.Y.S.2d 630; Flores v. City of New York, 29 A.D.3d at 358_359, 815 N.Y.S.2d 48).

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted that branch of Laws's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

PASSENGER IN BUS ACCIDENT LOSES SUMMARY JUDGMENT BECAUSE OF "EMERGENCY DOCTRINE"

Gary E. Rosenberg — Sun, 06 May 2012 17:55:00 GMT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Maxine Davis v. Metropolitan Transit Authority

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident attorney)

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RELATED POSTS:

BUS PASSENGER'S "SUDDEN STOP" ACCIDENT CASE DISMISSED (Posted by Queens accident attorney Gary E. Rosenberg on Feb 5, 2012)

"EMERGENCY DOCTRINE" GIVES SUMMARY JUDGMENT IN ACCIDENT CASE TO AMBULANCE THAT RAN GREEN LIGHT WITH LIGHTS AND SIREN ON (Posted by Queens accident attorney Gary E. Rosenberg on Jan 9, 2012)

"EMERGENCY DOCTRINE" APPLIED TO MULTI-VEHICLE CROSS-OVER AUTO ACCIDENT; SUMMARY JUDGMENT & CASE DISMISSAL GRANTED TO ONE CAR (Posted by Queens accident attorney Gary E. Rosenberg on Dec 4, 2011)

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In an action to recover damages for personal injuries, the defendant MTA Bus Company appeals from so much of an order of the Supreme Court, Kings County (Schneier, J.), entered November 9, 2010, as denied that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant MTA Bus Company is granted.

The Supreme Court should have granted that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendant MTA Bus Company (hereinafter the defendant) on the ground that it was not at fault in the happening of the subject accident.

"The emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternate courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency" (Evans v. Bosl, 75 A.D.3d 491, 492, 905 N.Y.S.2d 254, quoting Bello v. Transit Auth. of N.Y. City, 12 A.D.3d 58, 60, 783 N.Y.S.2d 648; see Miloscia v. New York City Bd. of Educ., 70 A.D.3d 904, 905, 896 N.Y.S.2d 109; Vitale v. Levine, 44 A.D.3d 935, 936, 844 N.Y.S.2d 105). Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact for purposes of application of the emergency doctrine (see Lonergan v. Almo, 74 A.D.3d 902, 903, 904 N.Y.S.2d 86; Khan v. Canfora, 60 A.D.3d 635, 636, 874 N.Y.S.2d 243), those issues may in appropriate circumstances be determined as a matter of law (see Tsai v. Zong-Ling Duh, 79 A.D.3d 1020, 1021, 913 N.Y.S.2d 748).

In support of the motion for summary judgment, the defendant relied on the plaintiff's General Municipal Law Sec. 50-h hearing testimony, her deposition testimony, and the deposition testimony of Donnell Robinson, an employee of the defendant who was the operator of the bus the plaintiff was a passenger on when the accident occurred. Those submissions established the defendant's prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by demonstrating that Robinson was confronted with a sudden and unexpected circumstance not of his own making and that, under the circumstances, his actions were reasonable and prudent in the context of that emergency.

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's assertion that there was a triable issue of fact as to the application of the emergency doctrine in this case because the bus was speeding just prior to the accident was speculative (see Gallagher v. McCurty, 85 A.D.3d 1109, 1110, 925 N.Y.S.2d 897; Thompson v. Schmitt, 74 A.D.3d 789, 790, 902 N.Y.S.2d 606; Yelder v. Walters, 64 A.D.3d 762, 765, 883 N.Y.S.2d 290; Batts v. Page, 51 A.D.3d 833, 834, 858 N.Y.S.2d 748; Sheppeard v. Murci, 306 A.D.2d 268, 268, 761 N.Y.S.2d 244; Wolf v. We Transp., 274 A.D.2d 514, 711 N.Y.S.2d 484).

The parties' remaining contentions either are without merit or have been rendered academic.

ASSAULT VICTIM'S SUIT DISMISSED; INTERCOM CONTRACTOR OWED HIM NO DUTY; BROKEN DOOR LOCK NOT "PROXIMATE CAUSE" OF ASSAULT IN APT

Gary E. Rosenberg — Sat, 05 May 2012 17:10:00 GMT

Court: Supreme Court, Appellate Division, Second Department, New York.

Case: Michael Brathwaite v. New York City Housing Authority

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury lawyer)

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RELATED POSTS:

POLICE NEGLIGENT IN GETTING SEARCH WARRANT FOR DRUGS AND KICKING IN DOOR OF APARTMENT OF INNOCENT SLEEPING MOTHER AND CHILDREN (Posted by Queens injury lawyer Gary E. Rosenberg on Sep 21, 2011)

VICTIM CAN'T SUE FARM FOR SEXUAL ASSAULT BY HORSEBACK RIDING INSTRUCTOR; SUMMARY JUDGMENT GRANTED TO DEFENSE (Posted by Queens injury lawyer Gary E. Rosenberg on Dec 27, 2011)

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In an action to recover damages for personal injuries, the defendant New York City Housing Authority appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), entered February 3, 2011, as denied its motion for summary judgment dismissing the amended complaint insofar as asserted against it, and the defendant American Security Systems, Inc., separately appeals, as limited by its brief, from so much of the same order as denied that branch of its separate motion which was for summary judgment dismissing the amended complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and the motion of the defendant New York City Housing Authority and that branch of the separate motion of the defendant American Security Systems, Inc., which was for summary judgment dismissing the amended complaint insofar as asserted against each of them are granted.

On August 24, 2007, the plaintiff was assaulted inside the apartment of his girlfriend, Patsy Williams, in a complex owned by the defendant New York City Housing Authority (hereinafter NYCHA). The assailants were Patsy's adult sons, Glenn and Douglas Williams. Douglas was a registered tenant who lived in the apartment with Patsy. Glenn had resided in the apartment as well until 2003, when NYCHA permanently barred him from entering the NYCHA development because he had shot someone in a neighboring NYCHA building. NYCHA required Patsy to agree that, for as long as she resided in NYCHA housing, she would not let Glenn reside in or visit her apartment. Thereafter, NYCHA special investigators made unannounced visits to Patsy's apartment to enforce the exclusion order. On March 30, 2005, they found Glenn lying in a bed inside the apartment, and Patsy told them that she had let Glenn into the apartment to visit his son, who continued to live there. NYCHA placed Patsy on probationary tenancy for violation of the exclusion agreement.

The plaintiff was present when Glenn was found in the apartment. The plaintiff testified at his deposition that Glenn had been allowed into the apartment on multiple other occasions after Glenn had been excluded. The plaintiff never reported Glenn's presence to NYCHA, although he knew that it was improper.

The plaintiff commenced this action against, among others, NYCHA and the defendant American Security Systems, Inc. (hereinafter American), the company responsible for maintaining the intercom system at the premises, alleging, inter alia, that the building's security was inadequate because the lock and intercom system for the exterior door to the building were broken, thereby allowing Glenn free access to the building. American moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it, and NYCHA separately moved for summary judgment dismissing the complaint insofar as asserted against it. American and NYCHA argued, among other things, that any negligence on their part did not proximately cause the incident since the assailant was a former tenant and member of the tenants' family who repeatedly had been invited into the apartment by his family despite NYCHA's exclusion order. The Supreme Court denied NYCHA's motion and that branch of American's motion which was for summary judgment, concluding that a triable issue of fact existed as to whether Glenn was an intruder who entered the building through a negligently maintained entrance. American appeals, NYCHA separately appeals, and we reverse the order insofar as appealed from.

Landlords have a common‑law duty to take minimal precautions to protect tenants from the reasonably foreseeable criminal conduct of third parties (see Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 878, 730 N.Y.S.2d 770, 756 N.E.2d 58; Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544, 548, 684 N.Y.S.2d 139, 706 N.E.2d 1163; Jacqueline S. v. City of New York, 81 N.Y.2d 288, 293-294, 598 N.Y.S.2d 160, 614 N.E.2d 723). This duty extends to a guest of a tenant (see Waters v. New York City Hous. Auth., 69 N.Y.2d 225, 230-231, 513 N.Y.S.2d 356, 505 N.E.2d 922). If a tenant or guest is assaulted by an intruder, recovery against the landlord requires a showing that the landlord's conduct was a proximate cause of the injury (see Burgos v. Aqueduct Realty Corp., 92 N.Y.2d at 548, 684 N.Y.S.2d 139, 706 N.E.2d 1163, citing Miller v. State of New York, 62 N.Y.2d 506, 509, 478 N.Y.S.2d 829, 467 N.E.2d 493).

American established its entitlement to judgment as a matter of law by demonstrating that it was not a landlord and, thus, owed no duty to the plaintiff. American merely had a contract with NYCHA, which was the landlord, to perform certain repairs to the intercom system at the subject premises. "Generally, a contractual obligation standing alone will not give rise to tort liability in favor of a third party" (Petry v. Hudson Val. Pavement, Inc., 78 A.D.3d 1145, 1146, 912 N.Y.S.2d 616; see Espinal v. Melville Snow Contrs., 98 N.Y.2d 136, 138, 746 N.Y.S.2d 120, 773 N.E.2d 485; Bienaime v. Reyer, 41 A.D.3d 400, 403, 837 N.Y.S.2d 737). However, liability may be assigned where a contracting party, in "failing to exercise reasonable care in the performance of his duties, launches a force or instrument of harm" where a plaintiff "detrimentally relies on the continued performance of the contracting party's duties;" or where "the contracting party has entirely displaced the other party's duty to maintain the premises safely" (Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140, 141-142, 746 N.Y.S.2d 120, 773 N.E.2d 485; see Stiver v. Good & Fair Carting & Moving, Inc., 9 N.Y.3d 253, 257, 848 N.Y.S.2d 585, 878 N.E.2d 1001). In opposition to American's showing, the plaintiff failed to raise a triable issue of fact as to the applicability of any of the three exceptions set forth in Espinal (see Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226; Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140-142, 746 N.Y.S.2d 120, 773 N.E.2d 485). Where, as here, the plaintiff failed to allege facts in his complaint or in his bill of particulars which would establish the applicability of any of the three exceptions set forth in Espinal, American, in establishing its prima facie entitlement to judgment as a matter of law, was "not required to negate the possible applicability of any of [those] exceptions" (Foster v. Herbert Slepoy Corp., 76 A.D.3d at 214, 905 N.Y.S.2d 226; see Espinal v. Melville Snow Contrs., 98 N.Y.2d at 140-142, 746 N.Y.S.2d 120, 773 N.E.2d 485).

Moreover, and contrary to the plaintiff's contention, both NYCHA and American established their prima facie entitlement to judgment as a matter of law by demonstrating that any negligence on their part was not a proximate cause of the injuries sustained by the plaintiff. The plaintiff claimed that security was inadequate because NYCHA and American failed to repair a broken lock on the entrance to the building. However, the plaintiff testified at his deposition that the two locks on the door to Patsy's apartment were functioning on the day in question. He further testified that he did not know how Glenn entered the apartment prior to the assault, that he and Patsy may have left the door unlocked when they entered earlier that day, and that Glenn may have had a key in any event. There was no testimony or documentary evidence arising from the investigation of the incident which suggested that Glenn had forcibly entered the apartment, or that he gained access other than through the front door. Thus, even if Glenn entered the building of his own accord because of the inoperative lock, he could not have gained access to the interior of the apartment where the assault occurred unless, as had been done on prior occasions, a family member let him in, furnished him with a key, or left the door unlocked.

In opposition to the prima facie showing made by NYCHA and American in connection with the issue of proximate cause, the plaintiff failed to come forward with any evidence that Glenn was an intruder rather than an invitee in the apartment (see Lester v. New York City Hous. Auth., 292 A.D.2d 510, 511, 739 N.Y.S.2d 200; Torres v. New York City Hous. Auth., 292 A.D.2d 519, 739 N.Y.S.2d 197; Radlin v. Brenner, 283 A.D.2d 948, 949, 723 N.Y.S.2d 795; Chang Soo Jang v. Jackson Condominium, 260 A.D.2d 420, 687 N.Y.S.2d 731; S.M.R.K., Inc. v. 25 W. 43rd St. Co., 250 A.D.2d 487, 673 N.Y.S.2d 119) and, thus, failed to raise a triable issue of fact as to whether the alleged negligence of NYCHA and American in failing to properly maintain the front door lock was a proximate cause of his injuries.

Accordingly, the Supreme Court should have awarded NYCHA and American summary judgment dismissing the complaint insofar as asserted against each of them.

The parties' remaining contentions either are without merit or need not be considered in view of the foregoing.

JURY FINDS STAIR LANDING WHERE TENANT SLIPPED AND FELL WAS SAFE AT TIME OF ACCIDENT DESPITE CLAIM IT WAS WET AND DARK; COURT UPHOLDS DEFENSE VERDICT - NO NEW TRIAL

Gary E. Rosenberg — Fri, 04 May 2012 17:35:00 GMT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Temitope Adetimirin v. Howland Hook Housing Co., Inc.

Date: Feb. 21, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens accident lawyer)

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Richmond County (McMahon, J.), entered March 10, 2010, which, upon a jury verdict in favor of the defendants on the issue of liability, and upon the denial of the plaintiffs' motion, in effect, pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendants and against them dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

On June 18, 2006, a Sunday night, the injured plaintiff allegedly entered an unlighted stairwell located in a 13-story apartment building in which she lived, which was owned and managed by the defendants, where she slipped and fell on a wet substance on the stairwell landing. The injured plaintiff, and her husband, asserting a derivative claim, commenced this action alleging that the defendants' negligence and violation of certain New York City Administrative Code provisions caused the accident. The action proceeded to trial before a jury, at which the plaintiffs testified that the lights in the stairwell were not working and there was a puddle of urine on the stairwell landing. A handyman who worked Monday through Friday at the subject building, who had the responsibility to inspect, maintain, and repair the premises, testified that, although in the past he had received complaints of urine in the stairwell and nonworking lights, he did not observe these conditions before or after the weekend of the injured plaintiff's accident.

After a trial on the issue of liability, the jury returned a verdict finding, in answer to the first question on the verdict sheet, that the subject premises were in a reasonably safe condition at the time of the accident. The plaintiffs' counsel moved, in effect, pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial, and the court denied the motion. A judgment dismissing the complaint was entered on the verdict, and the plaintiffs appeal. We affirm.

A jury verdict should not be set aside as contrary to the weight of the evidence unless the evidence so preponderates in favor of the moving party that the jury could not have reached its verdict by any fair interpretation of the evidence (see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163; Seong Yim Kim v. New York City Tr. Auth., 87 A.D.3d 531, 532, 928 N.Y.S.2d 315; Nicastro v. Park, 113 A.D.2d 129, 133-134, 495 N.Y.S.2d 184). "It is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses" (Palermo v. Original California Taqueria, Inc., 72 A.D.3d 917, 918, 898 N.Y.S.2d 502). Here, based on the evidence submitted to the jury, its determination that the subject area was reasonably safe on the date of the accident is supported by a fair interpretation of the evidence and, therefore, was not contrary to the weight of the evidence.

The plaintiffs' remaining contention is without merit.

PLAINTIFF RAISED ISSUE OF FACT AS TO WHETHER INJURIES TO CERVICAL AND THORACOLUMBAR SPINE AND HER SHOULDERS, CONSTITUTED SERIOUS INJURIES

Gary E. Rosenberg — Thu, 03 May 2012 17:50:00 GMT

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Audra Torres v. Hakan Ozel

Date: Feb. 14, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury attorney)

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DEFENSE NO-FAULT "SERIOUS INJURY" THRESHOLD SUMMARY JUDGMENT MOTION NICELY DEFEATED BY ACCIDENT VICTIM (Posted by Queens injury attorney Gary E. Rosenberg on Jan 7, 2012)

NO-FAULT THRESHOLD BOOBY TRAP (Posted by Queens injury attorney Gary E. Rosenberg on November 10, 2009)

DEFENSE "SERIOUS INJURY" THRESHOLD SUMMARY JUDGMENT MOTION DENIED; ACCIDENT VICTIM'S DOCTOR'S AFFIDAVIT RAISE ISSUE OF FACT AS TO BACK AND SHOULDER INJURIES (Posted by Queens injury attorney Gary E. Rosenberg on Dec 11, 2011)

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In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Agate, J.), dated April 11, 2011, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d).

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law Sec. 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 956-957, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The plaintiff alleged, inter alia, that as a result of the subject accident, the cervical and thoracolumbar regions of her spine, and both of her shoulders, sustained certain injuries. The defendants submitted competent medical evidence establishing, prima facie, that the alleged injuries to the spine and shoulders did not constitute serious injuries within the meaning of Insurance Law Sec. 5102(d) (see Rodriguez v. Huerfano, 46 A.D.3d 794, 795, 849 N.Y.S.2d 275).

However, in opposition, the plaintiff submitted competent medical evidence raising a triable issue of fact as to whether the alleged injuries to the cervical andthoracolumbar regions of her spine, and her shoulders, constituted serious injuries within the meaning of Insurance Law Sec. 5102(d) (see Perl v. Meher, 18 N.Y.3d 208, 217-218, 936 N.Y.S.2d 655, 960 N.E.2d 424). Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.