We are pleased to provide information regarding recent dispositive motions, trials and appeals won by Barth Sullivan Behr in motor vehicle accident cases, construction accidents, premises-related accidents, general liability, and coverage disputes. We hope this may be of use to you in your work. There follows a roundup of selected recent decisions from New York Appellate Divisions.
We are pleased to take this opportunity also to announce that Douglas P. Hamberger has joined our firm as a senior trial counsel. Doug served as an assistant DA from 1982 to 1991, trying over 160 jury cases. As staff trial counsel for CGU Insurance (1991-2002), and then senior trial counsel for Zurich American Insurance (2002 to date), Doug amassed many defensive victories in over 150 jury trials. We are confident that Doug’s experience and expertise will greatly assist our providing the top quality legal services we trust you have come to expect from Barth Sullivan Behr.
Please do not hesitate to email, call or write me or my partner Phil Barth if you have a question about any case reported in this newsletter, about New York law and practice, or if we may otherwise be of assistance to you in your work.
Thank you for your continued trust and confidence in our services.
Very truly yours,
Laurence D. Behr
Barth Sullivan Behr
“Defending Insurers, Their Insureds, and Municipalities Across Upstate NY Since 1928”
Web site: www.barthbehr.com
43 Court St., Suite 600
Buffalo NY 14202
TEL: 716-856-1300 FAX: 716-856-1494
RECENT DECISIONS SECURED BY
BARTH SULLIVAN BEHR
“NO CAUSE” VERDICT: CONSTRUCTION SITE ACCIDENT—LABOR LAW §§ 200, 241(6)—PERMANENTLY DISABLING SHOULDER INJURY
CASE NAME: Leigh Ames v. Norstar Bldg. Corp.
TRIAL ATTORNEY: Laurence D. Behr
COURT: Supreme Court, Erie County (Hon. Erin M. Peradotto, J.S.C.)
SUMMARY: Plaintiff Leigh Ames, a drywall scrapper, claimed to have been hurt in an unwitnessed accident attempting to enter the rear door of one of numerous low income townhouse units under construction. We had obtained summary judgment dismissing Ames’ Labor Law § 240 “scaffold law” claim because there was no “elevation related risk,” which was upheld by a divided Fourth Department (19 AD3d 1016), leaving Ames with Labor Law §§ 200 and 241(6) and common law negligence claims.
Ames claimed that to enter a unit he was to scrap out he had to climb up into the stairless rear door, which was nearly at chest height, because he found the front door locked. He alleged he slipped on packed snow on the doorsill as he tried to rise to his feet and fell back, and that his gloved left hand became lodged in the crack of the door causing him to hang briefly by his arm and injuring his shoulder. He never worked again and his condition progressively worsened; by the time of trial he had developed the neurologic complication of incurable myoclonic spasming, and displayed spasmodic shoulder and head motions throughout the trial. He claimed future medical expenses of $850,000, with past expenses of $60,000.
Ames claimed an unsafe workplace mainly because no steps were furnished to the rear entrances in violation of an OSHA regulation requiring a maximum distance of 19 inches between work areas. We disputed the violation because rear doors were not expected to be used regularly for access, and our client’s site supervisor could have been reached by cell phone to open any locked front doors. A mockup of the entrance was used to demonstrate that a man of Ames’ 6’2” height could step up easily into the entrance, even if it were 35” as Ames claimed at trial. Among many arguments, we contended that Ames was 100% negligent if he fell as claimed, because the floor inside the doorway was dry and he should have put his foot on it rather than the snow on the doorsill.
We also presented both medical evidence and the testimony of a former employer that Ames’ shoulder problem predated the alleged accident, and had bothered him since an arthroscopic surgery on it in 1990 (he claimed he was symptom-free since then). Because Ames could not recall if this were the first job he did that day, we argued that he reinjured his shoulder elsewhere and decided to take victimize our client as his best target for a lawsuit.
AMOUNT DEMANDED OF JURY: $6,900,000.00
DECISION: The jury rendered a unanimous verdict that our client was not negligent.
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“NO CAUSE” VERDICT: MOTOR VEHICLE ACCIDENT—REAR-ENDING OF PARKED MAINTENANCE VEHICLE
CASE NAME: Hokan v. Davern
COURT: Supreme Court, Erie County (Hon. Thomas Flaherty, J.S.C.)
TRIAL ATTORNEY: Philip C. Barth III
SUMMARY: Our client was driving in the left lane on a road with two lanes in his direction of travel, and a tractor-trailer was traveling in the same direction in the right lane. The tractor-trailer suddenly moved in front of our client, who reacted by moving to the right lane, where the plaintiff’s utility vehicle was partially blocking the lane. The plaintiff worked for the town water department, and was going to paint a fire hydrant. Our client did not see the plaintiff’s truck until immediately before impact. The plaintiff was outside the vehicle and jumbed over a guardrail when he saw our client’s car, sustaining serious injuries (not in evidence because the trial was bifurcated).
Plaintiff’s expert testified that our client would have had time to stop had he been traveling at a proper rate of speed, and observing the roadway ahead, but conceded that the plaintiff’s failure to put out warning signs, cones, and barricades violated several sections of the NY Uniform Traffic Control Devices Law. Our own accident reconstruction expert confirmed those violations, and gave detailed testimony regarding speeds, reaction time, and stopping distances, supporting his opinion that our client did not have time to stop his vehicle.
DECISION: The jury rendered a unanimous verdict that our client was not negligent.
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INSURANCE COVERAGE—LATE NOTICE—JURY FINDS INSUREDS DID NOT NOTIFY COMPANY BEFORE SUIT FILED THIRTY MONTHS AFTER ACCIDENT
CASE NAME: United Frontier Mut. Ins. Co. v. John J. Schultz, Scott Allen and John G. Schultz
COURT: Supreme Court, Erie County (Hon. John P. Lane, J.S.C.)
TRIAL ATTORNEY: Laurence D. Behr
SUMMARY: In February 2003 United Frontier Insurance Co. received notice of a Labor Law § 240 personal injury suit demanding $3,000,000 from its insureds, John J. Schultz and Scott Allen, partners in the insured business of rehabilitating and selling rental properties. Thirty months earlier in October 2000 Schultz's son, working for them as an independent contractor, had fallen through a second story porch deck breaking his hip.
United denied coverage for late notice, rejecting Schultz's claim that he had notified on the afternoon of the accident. Schultz claimed that he rushed from his home to the hospital to see his son, and because he either had left his cell phone home in his hurry, or its battery was dead, he called United from a payphone when he was a few blocks from the hospital. He wanted to report the accident before United’s office closed. He could not identify the payphone’s exact location, and did not know the woman who took his call at United. He said he called United directly rather than his agent because he found it easier to deal with United.
We introduced Schultz's subpoenaed cell phone records, revealing that he had made and received many calls on the afternoon and evening of the accident date. He then explained that he had to use the payphone because his cell phone’s battery had died and he knew United was about to close; he recharged the battery in his car and then continued using the cell phone. We also introduced his agent’s customer service representative’s testimony that Schultz often called her for reasons connected with the United policy. We argued that Schultz claimed to have called United only because had he called his agent he would have been connected to his CSR, and could not have claimed to have reported the accident to an unidentified individual.
DECISION: The jury rendered a unanimous verdict that Schultz had not called United as he claimed, entitling United to a declaration that coverage was forfeited for late notice.
United’s post-trial motion for financial sanctions for frivolous conduct of litigation (defending based upon a false factual assertion), pursuant to 22 N.Y.C.R.R. Part 130-1.1, is pending.
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SUMMARY JUDGMENT—DAMAGED PROPERTY NOT LISTED ON PLAINTIFF’S BANKRUPTCY PETITION, DEPRIVING HIM OF STANDING TO SUE
CASE NAME: Popadyn v. Clark Construction and Property Maintenance Services, Inc.
COURT: Supreme Court, Erie County (Hon. Christopher J. Burns, J.S.C.)
ATTORNEY: Philip C. Barth III
SUMMARY: Plaintiff claimed our client damaged his property including a boat and a luxury automobile when transporting same for storage. We determined that he had not listed the items claimed to have been damaged on his recent bankruptcy petition, and invoked the federal statute that vests the bankruptcy trustee with sole ownership of all property in a petitioner’s estate.
DECISION: The plaintiff lacked standing to sue for damage to the property; summary judgment granted dismissing the complaint.
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SUMMARY JUDGMENT: SERIOUS BURNS SUSTAINED BY BAR PATRON—PRIMARY ASSUMPTION OF RISK
CASE NAME: Szkatulski v. Thruway Inn
COURT: Supreme Court, Erie County (Hon. Erin M. Peradotto, J.S.C.)
ATTORNEY: Laurence D. Behr
SUMMARY: The plaintiff, a friend of the insured’s bartender, had performed an impressive bar trick with him on several occasions. She would take brandy into her mouth, and he would light her exhaled breath, creating a flamethrower effect. On the accident date, however, some ignited brandy escaped her mouth and dribbled onto her neck and shoulder, causing permanent and severe burn scarring.
DECISION: Complaint dismissed. The plaintiff was of sufficient age and experience to be charged with awareness that the risk of being burned was inherent in this recreational activity. As such, she fully assumed the risk of a burn injury, applying New York’s doctrine of “primary assumption of risk.” The plaintiff’s appeal is pending.
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“NO CAUSE” VERDICT: NEGLIGENCE OF LANDLORD, CONVICTED FELONY SEX OFFENDER, HELD NOT A PROXIMATE CAUSE OF FALL ON STAIRS.
CASE NAME: Amy Lebron v. Robbie Said
COURT: Supreme Court, Erie County (Hon. Paula Feroleto, J.S.C.)
TRIAL ATTORNEY: Laurence D. Behr
SUMMARY:Plaintiff 27-year-old LPN nurse living in upstairs apartment claimed a few weeks after she moved in she reported the light bulb was out in her front hall stairs. She also claimed there was a box of a previous tenant's belongings right outside her door that she had been asked not to discard because the police were going to come to look through it for some unnamed reason. Plaintiff claimed she exited from her dining room door onto the dark hallway when she tripped and fell over an object sticking out of the box of prior tenant’s belongings. She fell and broke her wrist on the landing windowsill requiring open reduction and internal fixation.
Plaintiff claimed negligence in failing to replace the light bulb in the hallway and failing to remove the box outside her front door. Her son, eight at the time, testified that the bulb was out for two months. Plaintiff admitted that the box could have been put in the attic or basement and that she chose to keep it where it was, We contended that the light bulb was never out, and in any event she was entirely responsible for it not being replaced if it was out because she socialized with defendant’s fiancé daily and never mentioned it during the two months before her fall. We also argued that she could have used the side entrance if the front hall were darkened. We argued that the box and its contents belonged to her, and that she was responsible for the box being there in any event.
Of interest, our client was brought to court from prison where he is serving 4.5 years for attempted forcible sodomy, and his conviction was used for impeachment.
AMOUNT DEMANDED OF JURY: $500,000.00
DECISION: The jury rendered a unanimous verdict that our client was negligent, reportedly concluding that the light bulb was out for two months, but that there was no proximate cause. The plaintiff’s appeal is pending.
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SUMMARY JUDGMENT AFFIRMED ON APPEAL—LANDOWNER LACKED NOTICE OF ALLEGED DEFECT
CASE NAME: Guite v. Burnison, 26 AD3d 824 (4th Dept 2006)
COURT: Appellate Division, Fourth Department
ATTORNEY: Pierre “Pete” A. Vincent
SUMMARY: While on our client’s property for a maple syrup festival, plaintiff claimed she stepped off driveway to avoid being hit by our client’s vehicle and that her foot hit a muddy sunken area causing her to fall and injure her ankle. Affirming Supreme Court, the Fourth Department held that our clients had proven they did not create or have actual or constructive notice of the condition. The plaintiff on appeal did not challenge Supreme Court’s determination, that the plaintiff was not forced to step off the driveway.
DECISION: Supreme Court affirmed; summary judgment granted dismissing the complaint.
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SUMMARY JUDGMENT GRANTED ON APPEAL—MOTOR VEHICLE—PLAINTIFF’S SURGERY SCARS NOT SHOWN TO RESULT FROM ACCIDENT
CASE NAME: Kilmer v. Strek, 35 AD3d 1282 (4th Dept. 2006)
COURT: Appellate Division, Fourth Department
SUMMARY: Supreme Court had granted partial summary judgment dismissing three categories of serious injury claimed by plaintiff, but denied judgment as to her “significant disfigurement” claim, based upon the surgical scar resulting from a cervical disc repair allegedly necessitated by the accident. Reversing Supreme Court and dismissing the complaint, the Fourth Department held that because our client had established that the plaintiff’s back problems pre-existed the accident and the surgery would have been necessary anyway, the resulting scar is not attributable to our client’s negligence. The appeals court rejected plaintiff’s orthopedic surgeon expert’s opinion, that the surgery was 10% attributable to the accident, as having “no objective medical basis.”
DECISION: Supreme Court affirmed in part and reversed in part; summary judgment granted dismissing the complaint.
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SUMMARY JUDGMENT—PLAINTIFF ASSUMED RISK OF WRESTLING INJURY, AND CLAIM BARRED BY INTENTIONAL TORT LIMITATIONS STATUTE
CASE NAME: Camp v. Kent
COURT: Supreme Court, Erie County (Hon. Michael Griffith, J.S.C.)
ATTORNEY: Laurence D. Behr
SUMMARY: The plaintiff, a friend of our client, removed our client’s keys from his vehicle in an effort to prevent him from driving while intoxicated. Our client wrestled with him to try to retrieve the keys and the plaintiff fell, injuring his shoulder.
DECISION: Complaint dismissed. The plaintiff voluntarily engaged in what he himself described as a wrestling match, and thus fully assumed the risk of injury, applying New York’s doctrine of “primary assumption of risk.” Further, the plaintiff’s claim sounds in the intentional tort of battery, and was thus time-barred by the one-year statute of limitations.
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SUMMARY JUDGMENT—DOG OWNER LACKED NOTICE OF VICIOUS PROPENSITY
CASE NAME: Bray v. Vanderhayden
COURT: Supreme Court, Rensselaer County (Hon. James B. Canfield, JSC)
ATTORNEY: Carol A. Farrar
SUMMARY: Plaintiff, teenage girl staying in residence for troubled youths, suffered multiple bites to her face from our client’s Akita, suffering significant scarring. The Akita had served as a therapy dog in such facilities and in hospitals and nursing homes for several years. There was no known prior vicious conduct, the plaintiff arguing unsuccessfully that the dog should have been restrained on a leash.
DECISION: Summary judgment granted dismissing the complaint.
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MOTOR VEHICLE—SUMMARY JUDGMENT—PRE-EXISTING INJURIES—NO-FAULT THRESHOLD NOT SATISFIED.
CASE NAME: Oldorff v. Horning-Metz
COURT: Supreme Court, Schenectady County
ATTORNEY: Carol A. Farrar
SUMMARY: Plaintiff, a passenger injured when his vehicle was rear-ended by our client, had had major back eight surgery prior to accident. Upon our proving the pre-existence of his complaints, the burden shifted to him to prove exacerbation. We demonstrated that he claimed to have been able to engage in numerous activities that were utterly inconsistent with his prior back condition.
DECISION: Complaint dismissed. The plaintiff did not meet his burden of proving aggravation of his prior injuries.
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CONTRACTUAL INDEMNIFICATION: SUBCONTRACTOR OBLIGATED TO INDEMNIFY GENERAL CONTRACTOR FOR LABOR LAW CLAIM.
CASE NAME: Newman v. Regent Contracting Corp.
COURT: Supreme Court, Erie County (Sedita, J.)
ATTORNEY: Pierre "Pete" A. Vincent
SUMMARY: An electrical subcontract's indemnification clause provided that subcontractor would defend and indemnify the general contractor for any injury or damage arising from the subcontractor's work, except as caused by the general contractors' sole negligence. Its contract also made the subcontractor responsible for safety of the workplace.
Subcontractor's employee sued the general, alleging negligence and Labor Law violations. We impleaded the subcontractor and, after the parties were deposed, moved for summary judgment for contractual indemnification. The subcontractor opposed, claiming to need more discovery to rule out the general contractor's negligence. Our response stressed the sub's contractual duty to maintain workplace safety, and the clarity of its negligence established by the party depositions.
DECISION: Summary judgment granted to the general, including attorney's fees incurred defending the action to date.
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SUMMARY JUDGMENT GRANTED ON APPEAL—LANDOWNER OWED NO DUTY OF CARE TO PLAINTIFF WHO SUFFERED SERIOUS BURNS FROM EXPLOSION
CASE NAME: Riddell v. Brown, 32 AD3d 1212 (4th Dept 2006)
COURT: Appellate Division, Fourth Department
SUMMARY: Reversing Supreme Court, the Fourth Department granted summary judgment dismissing the complaint in case involving serious burns to a worker from a gas pipeline explosion during an excavation. The pipeline had been installed by our client’s deceased husband 18 years before the accident. This highly complex case involving issues including easement extinction, contractual indemnification, third party beneficiaries, and notice, was resolved based on the absence of duty, the Fourth Department stating: "Because defendant owed no duty of care to plaintiffs, she cannot be held liable for the allegedly defective condition on the property."
DECISION: Summary judgment granted and complaint dismissed.
APPELLATE DIVISION ROUNDUP
FOURTH DEPARTMENT APPELLATE DIVISION
PREMISES—SPOLIATION OF EVIDENCE. Defendant’s insurance carrier either lost or destroyed a wire flag holder of a mailbox claimed to have injured plaintiff. Plaintiff’s motion to strike defendant’s answer for spoliation of evidence was denied because striking pleading is only appropriate where evidence conclusively demonstrates that conduct is willful or contumacious. However the plaintiff was held entitled to have the jury charged under NYPJI 1:77.1, which allows them to conclude that the loss or destruction had a fraudulent purpose if there is no reasonable explanation offered. Hussain v. Nowak, March 16, 2007.
LABOR LAW - TREE REMOVAL. Plaintiff was struck by a falling tree limb. Supreme court granted defendants’ and third-party defendant’s motion to dismiss Labor Law § 200 claim (essentially, common law negligence based on unsafe workplace). The Fourth Department modified by reversing as to contractor defendants who were responsible for tree removal, fencing and clearing of the construction site. Roosa v. Cornell real Property Servicing, Inc. et al., March 16, 2007.
LABOR LAW—PLAINTIFF’S NEGLIGENCE AS SOLE CAUSE A FACT ISSUE. Supreme Court properly denied defendant’s croos motion for summary judgment dismissing Labor Law § 240 (1) claim because defendant failed to establish that plaintiffs own actions in attempting to disassemble scaffolding in dangerously wet conditions contrary to instructions were, as a matter of law, the sole proximate cause of plaintiff's injuries. Defendant failed to establish that the scaffolding was properly constructed and that, but for the wet conditions, plaintiff would not have fallen. Plaintiff moreover raised fact issues by his testimony that scaffolding was unstable. WONDERLING v. CSX TRANSP., INC., 34 A.D.3d 1244 [4th Dept 2006].
THIRD DEPARTMENT APPELLATE DIVISION
MOTOR VEHICLE - NEGLIGENCE PER SE - EXCUSE. Plaintiff’s vehicle was struck head-on by defendant’s vehicle which had crossed a double yellow line, a statutory violation constituting negligence per se. Defendant sought to excuse his conduct, claiming that he “blacked out” and so could not be found negligent. Summary judgment of liability in favor of plaintiff affirmed. Although an unforeseen and unexpected medical emergency can excuse negligence per se based upon a statutory violation, defendant did not corroborate his claim with medical proof. Hazelton v. D.A. Lajeunesse Building and Remodeling, Inc. , March 15, 2007.
MOTOR VEHICLE—AGGRAVATION AND INCREASED SUSCEPTIBILITY. CONFLICT WITH FOURTH DEPARTMENT. Plaintiff awarded $85,000 for past and future pain and suffering due to injuries sustained in motor vehicle accident based upon jury finding that she suffered a permanent consequential limitation of use of a body organ or member. During cross-examination, defense counsel brought up plaintiff’s pre-existing scoliosis in an effort to prove that the underlying condition made her susceptible to suffering the injuries claimed, which plaintiff did not plead in her complaint or bill of particulars. Judgment reversed, and matter remitted for new trial on damages. Although Fourth Department does not require such pleading where defendant “opens the door,” Third Department does not permit presentation of exacerbation or susceptibility theories to a jury unless specifically pleaded in complaint or bill of particulars. Accordingly, Trial Court’s charge to jury on exacerbation/susceptibility theories was in error. Anderson v. Dainack.
ANIMALS—DOG BITE. LIABILITY LIMITED TO STRICT LIABILITY THEORY. Defendants’ unleashed dog ran into the street and knocked into plaintiff’s bike, causing plaintiff to fall and suffer injuries. Plaintiff brought an action on two theories: negligence and strict liability. Granting of defendants’ summary judgment motion dismissing complaint affirmed. Court of Appeals limits claims against owners of domestic animals to a strict liability theory, which requires proof that an owner knew or should have known of an animal’s vicious proprensities Bard v. Jahnke, 6 NY3d 592 (2006). A dog’s habit of chasing vehicles or otherwise interfering with traffic can be considered a vicious propensity because it is an act that might endanger the safety of those affected. Here, plaintiff’s evidence that defendants’ dog occasionally was allowed to run loose and then sometimes go into the street was insufficient to raise a triable issue of fact as to defendants’ knowledge of the dog’s vicious propensities. Further, defendants’ violation of the local leash law was immaterial, as it only could serve as evidence of some negligence, which is not an actionable theory. Alia v. Fiorina.
SECOND DEPARTMENT APPELLATE DIVISION
PERSONAL INJURY—SPECULATION—FALL ON SUBWAY TRACKS. The plaintiff was struck by a subway train, apparently after falling onto the tracks. A jury found the defendant transit authority 51% negligent. The trial court’s denial of the transit authority’s motion for judgment in its favor is reversed. The mere fact that the plaintiff was struck by a train while on the tracks does not support an inference that the train’s motorman was negligent. There was no evidence how long he had been on tracks or that he was there when the subway entered the station. Castellano v. NYCTA.
SUPPLEMENTARY UNINSURED MOTORISTS INSURANCE—LATE NOTICE NOT FOUND. The insured gave his insurer prompt written notice of an accident, applied for no-fault benefits, and furnished a sworn police accident report and medical authorizations. The insurer petitioned for a permanent stay of SUM arbitration based on his failure to furnish timely notice of his SUM claim. Granting of permanent stay reversed, and petition dismissed. There has been a shift away from New York’s rule that prejudice is not required to deny coverage for late notice, in the context of such coverage where the insurer had received timely notice of the accident. The insurer was not prejudiced because it had all the information needed to investigate the SUM claim. Further, the policy’s actually specified that prejudice was required to deny for late notice, stating: “We have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us….” New York Central Mutual Fire Insurance Co. v. Ward.
INSURANCE. COVERAGE—LATE NOTICE FOUND. Defendant (carrier) denied coverage to plaintiff (insured) in two underlying personal injury cases against plaintiff. Plaintiff gave insured notice of the underlying claims six months after they occurred. Granting of plaintiff’s summary judgment motion declaring that defendant owed a duty to defend and indemnify plaintiff on underlying claims reversed, and summary judgment granted to defendant dismissing complaint. The six months delay was untimely as a matter of law, even though plaintiffs in underlying actions indicated that they would not sue. Natural Stone Industries, Inc. v. Utica National Assurance Company.
LABOR LAW—NO ELEVATION RISK. Plaintiff fell at ground level in an open area. Granting of defendant’s summary judgment motion dismissing §241(6) cause of action affirmed. Area where plaintiff fell cannot be considered a “passageway, walkway, or other elevated working surface” within the meaning of 22 NYCRR 23-1.7(d). Porazzo v. City of New York.
PREMISES FALL—DARK HALLWAY. Plaintiff, a guest at defendants’ home, fell down a flight of concrete steps leading to a basement while being led down a dark hallway by one of the defendants. Plaintiff was unfamiliar with the house, and defendants did not illuminate the hallway. Granting of defendants’ motion to dismiss at close of plaintiff’s prima facie case reversed, and complaint reinstated. Failure of defendants’ to warn plaintiff, close basement door or illuminate area raised issues of fact for the jury. Pollack v. Klein.
PREMISES—STACKING OF MERCHANDISE IN STORE. After removing the uppermost plastic bucket from a stack on top of a pallet, plaintiff was injured when three remaining buckets fell and knocked him to the floor. Denial of defendant’s summary judgment motion reversed, and complaint dismissed. Merchandise on pallets came prestacked from manufacturer, and defendant was not aware of any complaints that the conditions were hazardous, which was not demonstrated either by submitted photographs or affidavit of plaintiff’s expert, which was speculative and conclusory. Langer v. BJ’S Wholesale Club, Inc.
WORKPLACE ACCIDENT—SPECIAL EMPLOYEE. Plaintiff, a doorman, was severely injured while stripping a floor with a chemical solvent. Defendant, the building’s managing agent, moved for dismissal based on the exclusivity provisions §29(6) of the Workers’ Compensation Law arguing that plaintiff was its “special employee.” Denial of defendant’s motion affirmed. A “special employee” relationship depends upon a determination of who controls and directs the manner, details and ultimate result of the employee’s work. Because defendant failed to demonstrate by specific facts that it did so here, it failed to present a prima facie entitlement to summary judgment. Marrero v. Akam Associates LLC.
ANIMALS—DOG BITE. One of the defendants owned a German Shepard/ Husky, which bit plaintiff while she was at an outdoor barbecue at defendants’ house. In a deposition, one of the defendants admitted placing “Beware of Dog” signs on gates on both sides of the house, and acknowledged that the dog growled whenever the doorbell rang. Denial of defendants’ summary judgment motion, which was subsumed in appeal from $145,000 Nassau County jury verdict, affirmed. Evidence raised issues of fact as to whether defendants knew or should have known of dog’s vicious propensities. Miller v. Isacoff.
LABOR LAW—HOMEOWNERS EXEMPTION. Plaintiff, an independent contractor, who was hired by defendants, owners of a single family home, was injured when he fell from second floor during renovation project. Granting of defendants’ summary judgment motion to dismiss §§240(1), 241(6) and 200 affirmed. Defendants’ instructions concerning aesthetic appearance of house and inspection of work as it progressed do not rise to the level of “direction and control” necessary to overcome exemption under §§240(1) and 241(6). Further, because there was no supervision and control, and defendants did not have notice of the unsafe condition which caused plaintiff’s fall, §200 common law negligence claim was also properly dismissed. Arama v. Fruchter.
WORKERS’ COMPENSATION—REDUCTION OF LIEN—THIRD-PARTY ACTION. Carrier agreed to compromise its lien by 34.95%, representing its equitable share of the costs of litigation. Denial of plaintiff’s motion to reduce lien to $190,329.84, which would have resulted in a one-third, one-third, one-third split between the plaintiff, carrier and counsel, affirmed. Carrier properly computed its lien, pursuant to Workers’ Compensation Law § 29, in reducing it by 34.95% to $128,813.08. Hammer v. Turner Construction Corporation.
FIRST DEPARTMENT APPELLATE DIVISION
PREMISES—ABUTTING SIDEWALK OR ROADWAY—SPECIAL USE DOCTRINE. Under the special use doctrine, Columbus Centre, as owner of the premises being demolished, owed a duty to plaintiff, a pedestrian who fell in a roadway depression under a sidewalk protective shed erected at the demolition site (see Kaufman v Silver, 90 NY2d 204, 207 [1997]). Columbus Centre derived a special benefit from being able to utilize part of the roadway for the sidewalk shed and scaffolding erected in connection with the demolition of its building, and thus owed plaintiff a duty to provide a safe walkway under the shed (see Curtis v City of New York, 179 AD2d 432 [1992]), lv denied 80 NY2d 753 [1992]). Given that there are questions of fact as to who decided the specific location of the shed, whether Columbus Centre breached its duty to provide a safe walkway, and whether the shed proximately caused plaintiff's injuries by directing her toward the alleged defect, summary judgment dismissing the action as against Columbus. MCKENZIE v. COLUMBUS CTR., LLC, No. 8855. Decided May 10, 2007.
MOTOR VEHICLE—DISMISSAL BASED ON PLAINTIFF’S OPENING STATEMENT. Plaintiff failed in his opening to state facts supporting a negligence claim against driver of vehicle. Trial Court’s granting of motion to dismiss after opening as against owner of vehicle affirmed. Because owner’s liability is derivative [V&T §388(1)], complaint was properly dismissed. Granting of defendant City of New York’s motion to dismiss at close of evidence also affirmed. Plaintiff failed to establish that bump in street was hazardous at time it was created. Ortiz v. City of New York, et al.
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