RECENT DECISIONS
SECURED BY
BARTH SULLIVAN BEHR

"NO CAUSE” VERDICT: CONSTRUCTION SITE ACCIDENT—LABOR LAW §§ 200, 241(6)—PERMANENTLY DISABLING SHOULDER INJURY

“NO CAUSE” VERDICT: CONSTRUCTION SITE ACCIDENT—LABOR LAW §§ 200, 241(6)—PERMANENTLY DISABLING SHOULDER INJURY

ATTORNEY:  Laurence D. Behr

CASE NAME:  Amesv. Norstar Bldg. Corp.

COURT:  Supreme Court, NiagaraCounty (Boniello, J.)

SUMMARY:  The plaintiff, assigned to "scrap out" a housing unit under construction, claims to have fallen when he tried to hoist himself several feet up into the ground floor through a doorway, for which no stairs were in place.   He claims that after getting up into the door and while attempting to get to his feet, one foot slipped on a small quantity of packed snow on the edge of the doorsill, causing him to fall backwards and strain his shoulder in an attempt to prevent his fall.   This alleged incident was unwitnessed, and the plaintiff claims he merely sat in his truck for an hour and went home, not reporting it to anyone until the next day.

We moved for summary judgment dismissing the "absolute liability" Labor Law § 240(1) claim, arguing that merely getting oneself up into a doorway about four feet above grade, does not present an extraordinary, elevation-related risk of the sort against which this statute was meant to protect.

DECISION:  Summary judgment granted dismissing claim under Labor Law § 240(1).   Matter will proceed to trial on Labor Law §§ 200 and 241(6) claims, as to both of which issues of comparative negligence, and the plaintiff's credibility, will be critical.  Appeal submitted for decision by Fourth Department on April 13.

"NO CAUSE" VERDICT:  MOTOR VEHICLE – THIRD CAR'S DRIVER IN THREE-CAR CHAIN COLLISION HELD NOT NEGLIGENT

ATTORNEY:  Philip C. Barth, III

CASE NAME:Bishop v. Quibell and Granada

COURT:  Supreme Court, LivingstonCounty (Lunn, J.)

SUMMARY:  Our client operated the third car in a three-car, chain reaction accident.  The plaintiff claimed that he was suddenly forced to slow down and stop his vehicle because of an elderly pedestrian in the roadway.   The plaintiff claimed that the second vehicle rear-ended his vehicle, and was in turn rear-ended by our vehicle.  The plaintiff claimed that both drivers behind him were negligent for following too closely and traveling at an excessive rate of speed under the conditions.

Upon cross-examination, the plaintiff admitted that he came to a sudden stop in the middle of the roadway without any prior warning.   Both following drivers testified that the plaintiff initially had entered traffic so closely in front of the second vehicle, that they both had to slow sharply to avoid an accident; and then, approximately just 2 or 300 feet down the road, the plaintiff stopped suddenly without warning.   We requested and received a jury charge, for sudden stopping and emergency situation.

DECISION:  The jury rendered a verdict that our client was not negligent, and that the co-defendant second driver was negligent, but his negligence was not a proximate cause of the accident.

VERDICT OF MISREPRESENTATION IN APPLICATION – POLICY RESCISSION UPHELD:  CONTRACTOR'S WIFE APPLIED FOR HIM, AND HAD FALSELY ANSWERED QUESTION ABOUT ROOFING WORK

ATTORNEY:  Laurence D. Behr

CASE NAME:Wafer Motor Corp. v. United Frontier Mut. Ins. Co., et al.

COURT:  Supreme Court, NiagaraCounty (Kloch, J.)

SUMMARY:Owner of hotel badly water-damaged by unprecedented wind and rain storm during a re-roofing operation sued the roofer, his liability insurer (United Frontier), and its own property insurer, which had disclaimed under a policy exclusion. United had insured the roofer under a small contractor's program for which roofers were ineligible, due to the risks of such work. United had disclaimed and rescinded based on misrepresentations in the application, which denied any roofing work. The roofer cross claimed for coverage, making the hotel owner's lack of standing a moot point (see Court of Appeals' new decision on standing, Lang v. Hanover Ins. Co., discussed below).

The owner's property insurer settled for over $800,000, and took over the prosecution as the owner's subrogee.   Trial was held before a Supreme Court jury in NiagaraCounty.

The roofer's application had been filled out by his wife, who had past experience as a life insurance agent.   She admitted knowing that a roofing policy would be much more costly than United's policy, having called around for quotes.  Answering a blanket question as to the applicant's involvement in a number of types of work, including roofing, she put "N/A" as to all—which she explained at trial as meaning, "No Answer," saying she assumed the company would ask her for details if they wanted an answer.  Her husband admitted that he had done about 50 residential roofing jobs over the previous few years, and his wife was aware of them because she kept his accounts. The effort was made to paint the application question as confusing and ambiguous.

DECISION:  Jury found the insured guilty of misrepresentation in the application, upholding the company's rescission of his policy.

SUMMARY JUDGMENT:  COMPLAINT DISMISSED FOR FAILURE TO PROSECUTE – CO-DEFENDANT, A SUBROGATED INSURER, WAS NOT ENTITLED TO NOTICE OF OUR DEMAND TO RESUME PROSECUTION, NOR OF OUR SUBSEQUENT DISPOSITIVE MOTION.

ATTORNEY:  Laurence D. Behr

CASE NAME:Rizek v. Nu-Era Services and Nationwide Mut. Ins. Co.

COURT:  Supreme Court, NiagaraCounty (Kloch, J.)

SUMMARY:  Owner of automobile repossessed by former husband of woman who sold it to her sued the insured repossession agency (our client), and her own automobile insurer, which had denied the claim.  After suit, and before answering, the insurer settled with the plaintiff, and, in a preliminary conference with the court's law clerk, expressed an intention to pursue our client via subrogation; the plaintiff maintained her uninsured claim for loss of use against our client.   When the required one year passed after we had answered, we served a demand to resume prosecution on plaintiff—a "90-day demand" under CPLR 3216.  When it was not satisfied, we moved to dismiss the complaint for failure to prosecute.  

Nationwide was not served with either pleading because it had never answered the complaint nor otherwise appeared, but was informed by plaintiff of the dismissal motion.   Nationwide opposed dismissal, arguing that it had not been noticed on the 90-day demand, that we knew of its presence in the case, and that it should thus be allowed to assert a cross claim against our client.   Nationwide simultaneously served an answer with a cross claim, which we refused as untimely.

DECISION:  Complaint dismissed.  Nationwide had not appeared in the manner prescribed by CPLR 320(a)—by either answering, serving a notice of appearance, or making a motion which has the effect of extending its time to answer—and therefore was not entitled to receive notice of our 90-day demand to resume prosecution.  

Nationwide could now commence a new subrogation action against our client—except that our dispositive motion purposely was not brought until the statute of limitations had expired on the underlying claim.   A subrogee "stands in the shoes" of its subrogor, and its claim is subject to all defenses that would be available against its subrogor.

"NO CAUSE" VERDICT:  INSURED FARMER BUILDING A FIELD ROLLER FOUND NOT NEGLIGENT WHEN ROLLER'S LARGE "WING" RAISED FOR TESTING FELL ON VISITOR

ATTORNEY:  Laurence D. Behr

CASE NAME:Brodie v. Smith

COURT:  Supreme Court, MonroeCounty (Polito, J.)

SUMMARY:  Our client, insured under a farmowners' policy, was building his own field roller in his barn.  It was to be a three-part steel assembly including a central roller, and two flanking wing rollers that folded up for transport.   The plaintiff, a friend and neighbor, unemployed and on disability, visited often and frequently assisted around our client's farm.  The entire huge assembly, not yet equipped with rollers, was supported by jack stands on the barn floor.   On the day of the accident, plaintiff was standing beneath one of the wings that our client had raised, using a forklift, to test the hinge assembly.  Plaintiff claimed our client asked him to prop up the end with a wooden beam, but our client claimed that he had attempted to do that on his own, despite being told not to do it.   When the beam touched it, the wing slid off the forklift tines, the jack stands toppled, and the wing struck plaintiff's lower leg, severely fracturing his ankle and distal tibia.

The liability-only trial had several sharply disputed factual issues, including the reason the wing had been upraised, and whether our client had told the plaintiff's wife (herself a plaintiff), "It was all my fault."   She testified that he said this at the hospital, and on cross-examination described the circumstances and location in detail and added that their daughter was present to hear it.   When informed that a "missing witness" charge would be requested if the daughter did not testify for plaintiff, she was brought in to confirm her mother's claim.   On cross, she gave a completely different description of the circumstances and location, and admitted that she felt that her father deserved to recover from our client.

DECISION:  Client held not negligent.  Several jurors stated afterwards that our argument, that there was no reason for our client to want the wing to be supported by a beam, when the forklift was adequate to raise it, was decisive for them.

SUMMARY JUDGMENT:  MOTOR VEHICLE – 90-DAY DISABLEMENT "SERIOUS INJURY" HELD NOT PROVEN

ATTORNEY:  Philip B. Abramowitz

CASE NAME:Harper v. McCray

COURT:  Supreme Court, ErieCounty (Dillon, J.)

SUMMARY:  The plaintiff, whose automobile was rear ended by our client, stayed out of work for 13 months, all the while treating with physicians and physical therapists. We moved for summary judgment based on her failure to satisfy the no-fault "serious injury" threshold.   Her opposing papers included her treating physician's affidavit stating that "the accident was the competent producing cause of the bulges and herniations shown in the MRI reports . . . and the competent producing cause of plaintiff being disabled from her usual employment [for 13 months]". The doctor also noted  "a significant loss of bodily function or system". 

We had chosen not to conduct an IME, but relied on Appellate Division and Court of Appeals decisions to establish that neither plaintiff's medical records (all of which we included in our moving papers), nor her treating physician's affidavit, were sufficient to establish a "serious injury" as defined in the Insurance Law. 

DECISION:Summary judgment granted and complaint dismissed. Justice Dillon issued an eight-page decision, in which he said that plaintiff had failed to submit "objective proof of the nature and degree of her injury," and that the treating doctor's affidavit was "conclusory in nature as to the opinions offered and those opinions are not supported by the requirements set forth in Toure v. Avisand subsequent cases."

SUMMARY JUDGMENT:  SUBCONTRACTOR CONTRACTUALLY OBLIGATED TO DEFEND AND INDEMNIFY INSURED GENERAL CONTRACTOR FOR INJURY TO SUBCONTRACTOR'S EMPLOYEE.

ATTORNEY:  Pierre "Pete" A. Vincent

CASE NAME: Newman v. Regent Contracting Corp.

COURT:  Supreme Court, ErieCounty (Sedita, J.)

SUMMARY:   Insured general contractor subcontracted an electrician to install wiring in a new office building.  The subcontract's indemnification clause provided that subcontractor would defend and indemnify the general for any injury or damage arising from the sub-contractor's work, except as caused by the general contractors' sole negligence.   The contract also provided that the subcontractor was responsible for maintaining the safety of the workplace.

Subcontractor's employee sued the general, alleging negligence and Labor Law violations.  Her insured general sub-contractor then sued the sub-contractor as a third-party defendant.   After the parties were deposed, we moved for summary judgment for contractual indemnification by the subcontractor.  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.

"NO CAUSE" VERDICT:  DRIVER NOT NEGLIGENT WHERE VEHICLE ENTERED ROAD FROM DRIVEWAY; PLAINTIFF'S MIGRAINES NOT A "SERIOUS INJURY"

ATTORNEY:  Pierre "Pete" A. Vincent

CASE NAME:Sherwood v. Sprague, et al.

COURT:  Supreme Court, CattaraugusCounty (Himelein, J.)

SUMMARY:  Our insured was driving approximately 10 miles per hour below the speed limit on a country road.   Plaintiff was a passenger in the co-defendant's truck, approaching the road from a dirt driveway on the right side.  Our driver first saw the co-defendant at 10 car lengths.  At 3 to 4 car lengths, he observed the co-defendant entering the road, whereupon he sounded his horn, braked, and veered to his left.  

The co-defendant and plaintiff both claimed that our driver was traveling too fast for road conditions, and failed to sound his horn early enough to avoid the collision.   We argued that our driver did all that he was required to by law – under which, he was entitled to rely on the driver entering the road to yield—and also, all that he could do under the emergency circumstances.

Plaintiff claimed as her principal injury, intense, frequent migraines as a result of the accident.  We argued that for the injury to qualify, it must be measured by objective evidence, not subjective complaints of pain by the plaintiff. 

DECISION:  Jury found our client not negligent, and also ruled that the plaintiff did not sustain serious injury, precluding any recovery against the co-defendant whom they found negligent.

SUMMARY JUDGMENT: PUNITIVE DAMAGES CLAIM NOT PERMITTED, BASED SOLELY ON DRIVER'S INTOXICATION

ATTORNEY:  Pierre "Pete" A. Vincent

CASE NAME: Paul v. Ireland

COURT:  Supreme Court, ErieCounty (Siwek, J.)

SUMMARY:  Our client, defendant driver in a motor vehicle accident claim, admitted in deposition that she dropped a cigarette, and took her eyes off the road to look for it, prior to the collision.  The accident occurred in the early morning hours, after our client had left a bar where she had consumed a few drinks.   Plaintiff had included a punitive damages claim.  We moved to dismiss such claim, arguing that intoxication by itself is insufficient to support punitive damages, and that additional evidence demonstrating egregious conduct or reckless behavior is required, for such damages to be awarded.  

We had to distinguish Fourth Department authorities, holding that the level of intoxication, and also subsequent DWI proceedings, may be considered in the punitive damages analysis. We argued that these cases only considered such factors, where they were indicative of egregious conduct (e.g.,where the BAC level was at twice the legal limit, or there was a prior DWI conviction).

In our case, the evidence was that our defendant driver was operating at or near the speed limit, and there were no prior DWI convictions, so that these factors were not indicative of egregiousness.  In addition, no other typical factors showing egregiousness (running a stop light, speeding, operating negligently in a congested area) were present.   Indeed, plaintiff had advanced no evidence of recklessness, except for the alleged alcohol consumption. 

DECISION:  Summary judgment granted dismissing punitive damages claim.   Case settled immediately thereafter.

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.  

“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.

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. 

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. 

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.

“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. AFFIRMED ON APPEAL.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

“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.

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.

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.

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.

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.

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.

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.

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.