UPS Stands its Ground

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Biking in New York City can be an arduous task, and that is without having to navigate bicycle lanes with car doors popping open and illegally parked vehicles blocking those designated lanes. One Big Apple cyclist had enough of delivery trucks using New York City’s bicycle lanes as their own personal unloading zone and sued United Parcel Service, Inc. (“UPS”) in an attempt to free those bicycle lanes. He lost.

In Bell v United Parcel Serv., Inc., the Appellate Division, First Department, recently affirmed a Supreme Court decision dismissing a complaint against UPS filed in New York County by a plaintiff who sought to permanently enjoin UPS delivery drivers from parking in designated bicycle lanes. Here, the plaintiff claimed UPS drivers continuously flout specific New York City Traffic Rules and Regulations that prohibit the operator of a motor vehicle from parking a vehicle, stopping, or standing in designated bicycle lanes.  

UPS moved to dismiss the complaint arguing plaintiff’s complaint failed to state a cause of action and because plaintiff lacked standing to sue UPS. The Supreme Court dismissed plaintiff’s complaint noting that “[a]lthough the complaint states a cause of action, the plaintiff lacks standing to assert it.” Here, the appellate court held that because plaintiff failed to sufficiently articulate how he suffered a special injury, beyond that suffered by the community at large (i.e., riding to work each day), as a result of UPS’s alleged conduct of obstructing designated bicycle lanes with its delivery trucks, UPS was entitled to dismissal of the complaint. That said, this decision may leave the door open (pun intended) for a cyclist who suffers a special injury.

Hold the Phone: Private Facebook Posts and Photos are Discoverable

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New York’s Court of Appeals (New York State’s highest court) recently ruled that limiting discovery to public Facebook posts is contrary to New York’s liberal discovery. As a result of this ruling, plaintiffs may now be required to disclose relevant private Facebook photographs and posts as part of discovery.

In Forman v Henkin, a personal injury action, the Court of Appeals was asked to resolve a dispute concerning disclosure of materials from a plaintiff’s Facebook account. In her suit, plaintiff alleged that she injured herself when she fell from a horse owned by the defendant. Following the accident, plaintiff claimed she became isolated and reclusive due to her injuries. During her deposition, plaintiff testified about her use of Facebook, stating she had posted many photographs of her lifestyle prior to her accident and that she could not remember if she posted any post-accident photographs. As a result, defendant demanded access to plaintiff’s entire Facebook account because her photographs and posts were relevant to the scope of her injuries and credibility. When plaintiff failed to provide the discovery, defendant filed a motion to compel.

The trial court ordered plaintiff to turn over all of her Facebook photos before and after the accident, as well as her private messages so that defendant could defend himself in the lawsuit. Plaintiff appealed, and the Appellate Division modified the trial court’s order. Accordingly, the plaintiff was only required to submit a smaller number of photographs. That decision highlighted plaintiff’s right to internet privacy.

However, Chief Judge Janet DiFiore, writing on behalf of a unanimous Court of Appeals, compared Facebook postings and photographs to medical records, noting that although medical records enjoy the protection of physician-patient privilege, if a plaintiff commences a lawsuit, the plaintiff might have to turn over all the private files relevant to the case. The Court of Appeals also rejected the argument that Facebook’s “privacy” setting governs the scope of discoverable materials in personal injury lawsuits. That said, the opinion also specifically found that a plaintiff’s entire Facebook account is not automatically discoverable just because they filed a personal injury lawsuit. Indeed, “courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account.”

Plaintiff's Perfect Storm

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The Appellate Division, Second Department, just issued a notable decision regarding the “storm in progress” rule. Under the “storm in progress” rule, a property owner will not be held liable in negligence for accidents occurring as a result of a slippery snow or ice condition occurring during an ongoing storm or for a reasonable time thereafter.

In Gervasi v Blagojevic, the plaintiff allegedly slipped and fell on ice on a sidewalk abutting the defendant’s property in Middle Village, Queens, and brought suit against the property owner. The defendant moved for summary judgment dismissing the complaint, arguing that he could not be held liable because the icy condition was created by precipitation during a storm in progress. The Supreme Court granted the defendant’s motion, and the plaintiff appealed. The Appellate Division reversed the Supreme Court’s decision, finding that although the defendant established that a storm was in progress at the time of plaintiff’s slip and fall, the plaintiff raised a triable issue of fact as to whether a separate icy condition existed prior to the storm in progress.

In the plaintiff's affidavit in opposition to the defendant’s summary judgment motion, she stated that on the morning of the accident, the ice on the sidewalk was approximately one inch thick. The plaintiff further submitted an affidavit from a meteorologist who opined that given the small amount of precipitation that fell on the morning of the accident prior to the slip and fall, the one-inch-thick layer of ice was not the product of the storm in progress. Instead, the plaintiff's expert opined that the ice was caused by substantial precipitation from a storm that occurred one or two days prior to the storm in progress. Contrary to the Supreme Court's determination, the Appellate Division found that the plaintiff’s expert opinion was not speculative. In this regard, the appellate court reasoned that plaintiff’s expert relied upon undisputed meteorological records, considered the plaintiff’s description of the ice, and explained how the meteorological events led to the formation of the particular patch of ice.

Who Let the Dogs Out?

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Dog bites, and other dog-related injuries, accounted for more than one-third of all homeowners’ insurance liability claim dollars paid out in 2015. Notably, New York had the third highest per-claim average in the country at $44,320. The laws regarding dog bites in New York are more complicated than most other states. Indeed, New York maintains a modified one-bite rule, which is rare in that it combines strict liability and negligence. While a dog owner is strictly liable for medical bills resulting from an unprovoked dog bite, if a victim is claiming other losses, including, among other things, disfigurement, lost income, pain and suffering, or emotional distress, the plaintiff must prove negligence. Accordingly, the plaintiff must demonstrate that a reasonable owner would have realized their dog was likely to bite and defendant would have taken precautions to protect the public, such as muzzling the dog while walking it and keeping it confined within an area from which it could not escape.

In Russell v Hunt and Garrett (2018 NY Slip Op 00750) (Feb. 2, 2018), the Appellate Division, Fourth Department, was faced with such a case. There, the plaintiff and defendant, Dorien Garrett (“Garrett”) resided in neighboring apartments. On August 31, 2014, Garrett was dog-sitting Lily, a three-legged pit bull owned by defendant Honri V. Hunt, who was out of town. While Garrett and Lily were in the fenced-in backyard, plaintiff came into the yard with her dog, Chloe. The two dogs lunged at each other, and plaintiff and Garrett separated the dogs. According to plaintiff, Lily attempted to bite Chloe during the initial confrontation. After the dogs were separated, Garrett was unable to restrain Lily, and Lily again attacked Chloe. Lily bit plaintiff on the arm while the dogs were being separated for the second time.

Plaintiff commenced a lawsuit seeking damages for injuries that she sustained from the dog bite, asserting causes of action for negligence and strict liability. The lower court granted plaintiff’s motion for partial summary judgment on liability, and denied the defendants’ cross-motion for summary judgment dismissing the amended complaint. On appeal, the Appellate Court agreed with defendants that the lower court erred in its decision.

The Appellate Court concluded that with respect to the issue of liability, defendants established, as a matter of law, that defendants lacked actual or constructive knowledge that Lily had any vicious propensities. See Doerr v Goldsmith, 25 NY3d 1114 (2015); Collier v Zambito, 1 NY3d 444 (2004). The court reasoned that the confrontation between the dogs was only one event, rather than two separate incidents as found by the lower court. The court also relied on the fact that only minutes passed between the two confrontations, and the defendants did not acquire actual or constructive notice of any vicious propensities based on the initial confrontation. Finally, the court also found that the defendants’ motion for summary judgment should have been granted because in New York, “[c]ases involving injuries inflicted by domestic animals may only proceed under strict liability based on the owner’s knowledge of the animal’s vicious propensities, not on theories of common-law negligence.’” Blake v County of Wyoming, 147 AD3d 1365, 1367 (4th Dep’t 2017).

Release Me!

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In Hoffman v. Horn, the plaintiff underwent a rhinoplasty and surgery for a deviated septum at nonparty Beth Israel Medical Center (“Medical Center”). The procedures were performed by the defendants Corinne E. Horn and Scott D. Gold (“defendant doctors”), who were allegedly employed by the defendant New York Otolaryngology Group. After the procedures, the plaintiff contacted the Medical Center and informed it that she suffered a loss of a crown and two cracked teeth due to the negligence of the anesthesiologist. The plaintiff was unrepresented, and accepted a settlement from the Medical Center. As part of the settlement, the plaintiff executed a general release in favor of the Medical Center, which stated, in pertinent part:

"[The plaintiff] releases and discharges BETH ISRAEL MEDICAL CENTER, its agents, servants and employees

. . .

"THIS RELEASE and settlement constitutes complete payment for all damages and injuries and is specifically intended to release the RELEASEE and also is specifically intended to release, whether presently known or unknown, all other tortfeasors liable or claimed to be liable jointly with the RELEASEE; and, whether presently known or unknown, all other potential or possible tortfeasors liable or claimed to be liable jointly with the RELEASEE."

The plaintiff subsequently commenced this action to recover damages for medical malpractice and lack of informed consent, alleging that the defendant doctors failed to give her proper information before performing the procedures, and that the procedures left her with a disfigured nose and sleep problems. The defendants moved to dismiss the complaint, claiming that the general release was broad enough to include them. The plaintiff opposed the motion, arguing that the release was only intended to release the Medical Center, and that it specifically releases only joint tortfeasors. The plaintiff contended that the defendant doctors were not joint tortfeasors with the Medical Center, but rather separate tortfeasors liable for their malpractice independent of the Medical Center. The Supreme Court granted the motion, and the plaintiff appealed.

The Appellate Division, Second Department, reversed the Supreme Court’s decision, reasoning that pursuant to General Obligations Law § 15-108(a), “[w]hen a release . . . is given to one of two or more persons liable or claimed to be liable in tort for the same injury, . . . it does not discharge any of the other tortfeasors from liability for the injury . . . unless its terms expressly so provide.” The Appellate Court found that the release signed by the plaintiff was unambiguously limited to tortfeasors jointly liable with the Medical Center.

Here, the defendants in this case did not contend that the defendant doctors were employees of the Medical Center, or that the defendant doctors held themselves out as agents of the Medical Center. As such, the Court found there would be no basis for joint liability with the Medical Center. The Court also relied on the fact that the injuries claimed in this action were different from those claimed against and settled with the Medical Center (as the lost crown and broken teeth caused by the anesthesiologist, an employee of the Medical Center, were completely distinct from the damages claimed in this action). Accordingly, the Court held that the release of the Medical Center did not discharge the defendants in this case because they were not joint tortfeasors.

This case highlights the potential for multiple and distinct injuries stemming from the same event. As a result, it is important for defendants to draft releases with an eye towards covering all possible claims against all possible defendants. For more information about this case, please feel free to contact us, as we drafted the winning briefs.  

Businesses and Property Owners: Heed This Decision

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In Mandarano v PND, LLC, et al. the plaintiff allegedly was injured when he slipped and fell on a large piece of wet cardboard during a rainstorm. The wet cardboard was located on the public sidewalk next to a building in New York City owned by defendants PND, LLC, and AN & Brothers, Inc. (“PND defendants”), and leased in part to defendants BBCN Bancorp, Inc., and BBCN Bank (“BBCN defendants”). Following discovery, the PND defendants moved for summary judgment dismissing the complaint asserted against them. The lower court not only granted the motion, but upon searching the record, awarded summary judgment in favor of the BBCN defendants too. Not surprisingly, Plaintiff appealed.

The Appellate Division, Second Department, upheld the lower court’s decision, reasoning that a defendant that moves for summary judgment in a trip-and-fall case has the initial burden of establishing, prima facie, that it neither created nor had actual or constructive notice of the alleged hazardous condition. In New York, to constitute constructive notice, a defect must be visible and apparent for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it. See Gordon v American Museum of Natural History, 67 N.Y.2d 836, 838; Birnbaum v New York Racing Assn., Inc., 57 A.D.3d at 598-599; Bykofsky v Waldbaum’s Supermarkets, 210 A.D.2d 280.

Here, the Appellate Division found that contrary to the plaintiff’s contention, the PND defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence of their trash collection and disposal practices, deposition testimony regarding the routine cleaning of the sidewalk each morning, and deposition testimony from several witnesses who walked through the area shortly before the plaintiff’s accident and did not observe the condition that allegedly caused his fall. In opposition, the plaintiff presented merely speculative arguments that were insufficient to raise a triable issue of fact. See Arslan v Richmond N. Bellmore Realty, LLC, 79 A.D.3d 950, 951; Kaufman v Man-Dell Food Stores, 203 A.D.2d 532, 533.

Accordingly, the Appellate Division found that the lower court properly granted the PND defendants’ motion for summary judgment. Moreover, given the evidence presented on the motion, the court properly exercised its authority pursuant to CPLR 3212(b) in searching the record and awarding summary judgment to the nonmoving BBCN defendants with respect to an issue that was the subject of the motion before the court. See Sang Woon Lee v Il Mook Choi, 132 A.D.3d 969, 971; Bernal v 521 Park Ave. Condo, 128 A.D.3d 750, 751.

This case serves as a critical reminder to businesses and property owners that implementing routine procedures and keeping detailed daily maintenance records, while somewhat trying, can help save you from liability in lawsuits involving an accident at your premises.

No Suit For You! Restaurant Serving Hot Soup Prevails Prior to the Start of National Soup Month

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In Sekkat v. Huitres NYC, Inc., the infant-plaintiff burned herself on hot soup that fell from a table at defendant’s restaurant.  Admittedly, the soup fell as a result of infant-plaintiff and her younger brother horsing around at the table. Notably, the child’s mother had left the soup to cool down prior to the incident and warned her children that the soup was hot when it was initially served.

Although the trial court denied defendant’s motion for summary judgment, the Appellate Division reversed in favor of the defendant-restaurant.  The Second Department noted that liability for injuries resulting from hot liquids required a showing that the liquid was excessively hot in temperature and that, as a result, it was unreasonably dangerous and presented a danger that was not reasonably contemplated by the customer.  Here, the Court held that the restaurant had presented sufficient proof that its chefs had checked the temperature before serving the soup and that the soup was within the temperature required by the New York City Department of Health (the New York City Health Code prescribes the temperature required for hot soup served at restaurants to be between 140ºF and 165ºF). In reversing the trial court’s decision, the Appellate Division further reasoned that the infant-plaintiff was aware of the possible danger of the hot soup and that the restaurant’s failure to warn the plaintiff was not the proximate cause of the accident.

 

Having a Home Office Might Expose You to Liability in New York City

Since 2003, responsibility for slip and fall accidents on New York City sidewalks has shifted from the City to contiguous property owners (Section 7-210, Administrative Code). However, this stricture does not apply to “one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes…”  With the rise of home offices (some reports indicate as many as many as 30 million people work from a home office at least once a week), what does this mean for residents of New York City who maintain a home office?  The reasoning in the recent decision of Koronkevich v Dembitzer may be instructive.

When Nelli Koronkevich stumbled and fell on a faulty sidewalk that abutted real estate owned by the defendants (Alexander and Henny Dembitzer), the plaintiff initiated an action for damages.  The defendants moved to dismiss the complaint under the above exception claiming the property was: (1) a two-family property; (2) entirely occupied by them and their children; and (3) used exclusively for residential purposes. The trial court denied defendants’ motion, reasoning that, among other things, the defendants did not use the premises for exclusively residential purposes.

On appeal, however, the trial court’s order was reversed---and summary judgment dismissing the complaint was granted to defendants. Here, Alexander Dembitzer was the director of a summer camp located in upstate New York, and during the off-season, he used the property’s basement to conduct the camp’s business. However, the Appellate Division, Second Department, found that the defendants did not claim the home office as a tax deduction, their home address was only used to receive the camp’s mail during the off-season, and they did not use the office space with any regularity. Therefore, the court believed that defendants had established that they were exempt from liability---pursuant to the exception---because the partial use of the basement as an office space was merely incidental to their residential use of the property.

Using the court’s reasoning, had the defendants claimed the home office as a tax deduction, received mail at that address, and/or used the office with some regularity, the defendants may have been faced with liability.    

Appellate Court Pulls the Rug Out from Plaintiff’s Case

When it comes to personal injury, the evidence is the thing wherein one catches the conscience of the court---not the king---underscoring the spirit and the letter of the law.

Plaintiff, Rosa Rivera, recently appealed an order of the Supreme Court, Westchester County, to recover damages for injuries suffered when she allegedly fell on a carpet situated next to the entrance of the defendants’ store.  

Though Ms. Rivera claimed that her fall was caused by faulty carpeting, she could not pinpoint, identify or indicate any defect in the rug. In New York, slip and fall liability for a plaintiff's injuries pivots on substantiation. There must be evidence of a dangerous or defective condition, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time.

In affirming the Supreme Court’s decision dismissing the complaint against defendants, the Appellate Division, Second Department reasoned that, “a plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation.”

New York Labor Law Holds Sway

To paraphrase Sigmund Freud, sometimes an unreinforced ladder is just an unreinforced ladder; and negligence is simply negligence.

In seeking summary judgment to recover damages against the defendants for personal injuries as a result of a fall from a ladder, the plaintiff in Bridgemohan v Cornell Group, Inc., alleged that he was exposed to elevation-related risks for which no safety measures were provided. Indeed, the plaintiff maintained that this failure to install adequate protection led to the accident and caused his injuries.

The plaintiff's deposition revealed that Jose Soriano, who'd been retained by the defendants to perform work on the premises, had enlisted plaintiff to help with the job. The task entailed using a ladder to fill cracks in a garage wall. While plaintiff used the ladder, it gave way.  Both the plaintiff and the ladder plummeted to the ground. The plaintiff hit the concrete pavement, striking his left shoulder and injuring the left side of his jaw. Notably, the ladder had no protective tips or rubber feet.

Upon a review of the motion papers, the Court determined that the defendants failed to raise a triable issue of fact as to whether the plaintiff's actions (including allegedly performing a jump turn on the ladder) were the sole cause of his accident. Moreover, the ladder had not been secured to a wall; nor was it being held by anyone, and it did not have protective rubber feet. Additionally, Mr. Soriano paid plaintiff for the six to seven hours of work on the defendant's premises. As a result, the court found the issue of unpaid volunteer work---in Stringer v Musacchia---was inapplicable.

Thus, the defendants' violation of Labor Law §240(1) was found to be the proximate cause of the plaintiff’s accident; and the plaintiff's conduct could not be held responsible for it. Indeed, the Court specifically held that a jump turn, standing alone, was insufficient to strip plaintiff of statutory protection and did not constitute an unforeseeable or extraordinary act which was a superseding cause of the accident. Accordingly, the plaintiff's motion for summary judgment was granted.

 

Trump Tweets Deemed Non-Defamatory

Long before he sought the U.S. presidency, Donald J. Trump crafted a high-profile public persona as the consummate dealmaker. He later turned his attention to reality programming.  His TV tag line---"You're fired!"--- underscored the Donald’s assertive leadership style. Most recently, throughout the Republican primaries and Presidential election, Mr. Trump used Twitter as a way to express his thoughts, opinions, and criticisms (using 140 characters or less).

However, some of those tweets resulted in a longtime Republican consultant, Cheryl Jacobus, filing a multimillion-dollar lawsuit accusing Mr. Trump and his campaign manager, Corey Lewandowski, of making false statements that harmed her professionally and personally. The complaint accused Mr. Trump and Mr. Lewandowski of libeling her by depicting her as a desperate job-seeker who turned on Mr. Trump after he declined to hire her as part of his campaign for the Presidency.

Apparently, before Mr. Trump’s formal announcement of his candidacy, Jacobus met with two Trump campaign operatives (Corey Lewandowski and Jim Dornan) regarding the position of communications director for the campaign on two occasions. During the second meeting between Ms. Jacobus and Messrs. Dornan and Lewandowski, the trio bickered over FOX News.  Lewandowski became agitated, Dornan left the room, and Jacobus decided she could not work with the histrionic Lewandowski.  After Mr. Trump's formally announced his candidacy for the GOP nomination, Ms. Jacobus discussed his campaign on a number of cable-TV networks.

During one such appearance on CNN on January 26, 2016, Ms. Jacobus characterized then candidate Trump as "bad debater" who "comes off like a third grader faking his way through an oral report on current affairs." Moreover, she stated that he was using a lingering dispute with Megyn Kelly as an excuse for ducking the next FOX News Republican presidential debate. On another CNN show, Jacobus said "there had been a Trump Super PAC, [that] the campaign lied about it, and then shut it down."

Lewandowski's lashed out at Jacobus on MSNBC's Morning Joe program: "[t]his is the same person . . . who came to the office on multiple occasions trying to get a job from the Trump campaign, and when she wasn't hired clearly she went off and was upset by that."

Mr. Trump took to Twitter: "Great job on @donlemon tonight @kayleighmcenany @cherijacobus begged us for a job. We said no and she went hostile. A real dummy! @CNN

After Jacobus's lawyer sent Mr. Trump a cease and desist letter, Mr. Trump upped the ante by tweeting: "Really dumb @CheriJacobus. Begged my people for a job. Turned her down twice and she went hostile. Major loser, zero credibility!"

Shortly thereafter, Jacobus filed her defamation lawsuit. 

In a pre-answer motion to dismiss, Mr. Trump and Lewandowski argued that the statements in question, including Mr. Trump's tweet that Jacobus "begged" for a job and was rejected, constituted hyperbolic rhetoric, too vague to be defamatory.

Jacobus opposed, arguing defendants' words were "deliberate fabrications" of "what they claim caused her to express the views she expressed, which was that she begged for a job and was turned down."

In citing precedent and invoking "the spirit of the First Amendment," Justice Barbara Jaffe ruled in favor of the defendants, finding that "considering the statements as a whole, I find that it is fairly concluded that a reasonable reader would recognize defendants' statements as opinion, even if some of the statements, viewed in isolation, could be found to convey facts. Moreover, that others may infer a defamatory meaning from the statements does not render the inference reasonable under these circumstances.

Thus, although the intemperate tweets are clearly intended to belittle and demean plaintiff, any reasonable reading of them makes it "impossible to conclude that [what defendants said or implied] . . . could subject . . . [plaintiff] to contempt or aversion, induce any unsavory opinion of [her] or reflect adversely upon [her] work," or otherwise damage her reputation as a partisan political consultant and commentator."

 

 

 

 

Macy’s Uses Its Magic

Jesse W. Reno patented the “Endless Conveyor or Elevator” in 1892. He also installed the first working escalator on Coney Island four years later. Surprisingly, escalator design has not changed significantly from 1890’s. The entrance and exit platforms can often feel like you are getting ready to enter into a game of Double Dutch. The stairs, which were once right in front of you, disappear beneath themselves.  It comes as no surprise that clothing and body parts often get stuck on escalators. In recent years, escalators have caused significant injuries, including a seven-year-old boy from New Jersey who got his foot stuck in a mall escalator and had to have his toes amputated. In Massachusetts, a prep cook at a sushi bar died when the hood of his sweatshirt became entangled in an escalator.

In Isaacs v Federated Dept. Stores, Inc., Macy’s escaped liability for injuries to a plaintiff injured on an escalator at one of its stores in Brooklyn based upon lack of notice. The plaintiff alleged that a broken piece of metal caught the strap of her pocketbook and caused her to fall. While the trial court originally denied Macy’s motion for summary judgment, the Appellate Division, Second Department found that Macy’s did not create the defective condition that caused the accident or have actual or constructive notice of that condition.  The court reasoned that Macy’s established, through the deposition testimony and escalator inspection logs, the escalator was regularly inspected and maintained, and that Macy’s had not received any prior complaints about the escalator before the accident. Among other things, a Macy’s employee testified at a deposition that he inspected the escalator on the morning of the accident and that it was in working order. The appellate court found that the plaintiff failed to produce evidence of a prior problem with the escalator that would have provided notice of the specific defect that allegedly caused the accident or to offer proof that the alleged condition existed for a sufficient length of time to provide Macy's with constructive notice.

Not Even BigLaw Can Save Appeal

One of the most basic tenets of appellate practice is that a party cannot raise an argument on appeal if that party did not raise the argument before the trial court. In short, an appeal can be lost before it’s even begun. Given appeals are time-consuming and costly, particularly in New York’s First and Second Departments (where it can take over a year for an appeal to be fully briefed, argued, and decided), nothing is more cringe-worthy than reading an appellate decision shutting down an entire appeal with reasoning that the arguments raised on appeal were unpreserved because they were not presented to the trial court. This is why it is so important for attorneys to draft motions, particularly dispositive motions, with an eye toward the possibility of an appeal.

In Polini v Schindler Elevator Corp., one of the largest and most well respected litigation law firms in the world argued the appeal on behalf of the defendant-appellant Schindler Elevator Corporation (“Schindler”). In this personal injury action, the plaintiff claimed that a wood panel fell on her head after she exited an elevator in the lobby of a building in Manhattan while employees of the defendant-appellant Schindler were replacing a video monitor. It was undisputed that Schindler’s employees removed the wood panel and leaned it against a wall before it fell and hit the plaintiff on the head.  

Ultimately, the plaintiff moved for summary judgment on the issue of liability as against Schindler before the trial court. In opposition, Schindler argued, among other things: (1) it had no duty of care towards Plaintiff; (2) it cannot be held liable for its employees’ negligent actions because removing the panel was outside the scope of its contract with the owners of the premises; (3) plaintiff was not a party to the contract; and (4) Plaintiff’s accident was not foreseeable and occurred due to an “Act of God” which was described as an unprecedented gust of wind knocking over the wood panel.

The trial court rejected Schindler’s arguments and granted plaintiff summary judgment on the issue of liability.

Schindler appealed the trial court’s decision, arguing, among other things, that (1) the wooden panel that its workers leaned against the wall was open and obvious; (2) plaintiff failed to use her senses to observe it; and (3) any barricades or warnings would not have prevented the accident.

Unfortunately, the prestige of the law firm representing Schindler on this appeal could not change what had been previously argued by the defendant-appellant in front of the trial court. In a short decision, the court summarily rejected Schindler's arguments on appeal because those arguments were unpreserved.

This decision serves as a reminder to attorneys that if you think you should raise an issue before the trial court, you better raise that issue before it's gone.      

 

The Power of an Appeal: Homeowner Succeeds in Wells Fargo’s Foreclosure Action

In rendering decisions, New York trial courts vary widely in their application of rules of procedure. Fortunately, for the homeowner in Wells Fargo Bank, N.A. v. Bonanno, the New York State Appellate Division, Second Department, rendered a favorable decision based on the proper application of the procedural rule at issue.

In October 2003, the homeowner obtained a $322,700 loan from Wells Fargo, secured by a mortgage on her Seaford, New York home. Thereafter, the homeowner defaulted on her loan, failing to make the required payments toward it. In August 2011, Wells Fargo started a foreclosure action against the homeowner by personally serving her with process. The homeowner failed to answer the complaint. Nevertheless, the homeowner appeared with Wells Fargo for two court-mandated foreclosure settlement conferences. After the parties could not reach a settlement at the May 9, 2012 conference, the Nassau County Supreme Court advised Wells Fargo to proceed with the action.

Nearly two years passed before Wells Fargo moved for an order of reference, which would send the case to a court-appointed Referee to compute the total amount owed to Wells Fargo under the terms of the mortgage. The homeowner cross-moved to dismiss Wells Fargo’s complaint against her, arguing, among other things, that Wells Fargo failed to timely move for a default judgment against her after she defaulted by failing to answer the complaint.

Under NY CPLR 3215(c), “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed.”

Despite this rule, which explicitly requires a plaintiff to move for a default judgment within a year, the Supreme Court granted Wells Fargo’s motion and denied the homeowner’s cross-motion, finding that Wells Fargo had shown good cause for the delay in prosecuting the action and had not abandoned it.

Armed with the law on her side, the homeowner appealed the Supreme Court’s decision. The Appellate Division found that Wells Fargo failed to demonstrate it had a reasonable excuse for its protracted delay in moving for a default judgment against the homeowner. To this end, the Appellate Division noted that, in spite of the trial court authorizing Wells Fargo to proceed with the prosecution of this case, Wells Fargo took no steps to move for a default judgment until nearly two years later. Moreover, Wells Fargo failed to show it had reasonable excuse for this delay. As such, the homeowner prevailed on her motion to dismiss Wells Fargo’s foreclosure action.

This case highlights the fact that banks have been inundated with foreclosure actions over the past several years and, as such, let numerous cases fall through the cracks. Here, the homeowner capitalized on Wells Fargo’s procedural mistake and undue delay, which, as we noted in a previous post, is one such way to succeed in defending a foreclosure action.

Court Avoids Dangerous Precedent with Respect to Insurance Law (For Now)

Very few cases in New York have substantially addressed the new(ish) prejudice rule of the Insurance Law.  Insurance Law §3420(a)(5) and (c)(2)(A) provide that for claims made under policies issued or renewed on or after January 17, 2009, an insurer seeking to disclaim coverage based upon late notice must demonstrate prejudice if the insured's notice is provided within two years of the time it was due.  Insurance Law §3420(c)(2)(C), states an “insurer's rights shall not be deemed prejudiced unless the failure to timely provide notice materially impairs the ability of the insurer to investigate or defend the claim." Therefore, it is the burden of the insurer to show that it was prejudiced by the insured's delay in providing notice.

In Goldshmidt v Endurance Am. Specialty Ins. Co., Plaintiffs Aleksandr Goldschmidt and Inna Goldschmidt (“Plaintiffs” or “Goldschmidts”) moved for summary judgment seeking a declaration that they were entitled to defense and indemnity from Defendant Endurance American Specialty Insurance Company (“Defendant” or “Endurance”) on a primary and non-contributory basis in an underlying action pending in Supreme Court, Kings County.  The Defendant cross-moved for summary judgment seeking a declaration that it had no duty to defend or indemnify Plaintiffs in the underlying action.  While the court ultimately punted on the issue, the reasoning in the court’s decision may be useful in future cases involving the Insurance Law’s prejudice rule. 

In the underlying action, the plaintiff claimed that on January 5, 2012, he was injured when he fell on a stairway while performing construction work at the building owned by the Goldschmidts. The underlying plaintiff was an employee of Kadar Elite Construction, Inc., the contractor hired by the Goldschmidts to perform the construction work at the premises. Kadar Elite was insured by Endurance. 

Prior to notifying Endurance of the underlying action, the Goldschmidts answered the complaint, participated in substantial discovery, and were served with a motion to strike their answer based upon spoliation of evidence, as the stairway where the underlying plaintiff allegedly fell had been removed by the Goldschmidts. 

The Goldschmidts finally provided notice of the accident on June 26, 2013, after receiving the motion to strike in the underlying action. Endurance responded to the Goldscmidts’ request for coverage in the underlying action by offering to defend the Goldschmidts subject to co-insurance with their insurance on a 50/50 basis while reserving the right to deny coverage based upon late notice.   

While Plaintiffs failed to notify Endurance of the occurrence “as soon as practicable,” there was no dispute that notice Plaintiffs provided notice to Endurance less than two years after the alleged accident occurred. Therefore, under Insurance Law §3420(c)(2)(C), in order to deny coverage, Endurance was required to show that Plaintiffs' late notice prejudiced Endurance in a way that materially impaired its ability to investigate the claim.

In her decision, Justice Joan M. Kenney denied both the motion and cross-motion.  However, Justice Kenney did find that “the condition of the stairs and the determination of the motion to strike the answer for spoliation of evidence in the underlying action is indeed critical to whether Endurance was prejudiced by the delay in notice.” Right or wrong, based upon the language of her decision, it appears Justice Kenney’s ultimate determination regarding prejudice in this action will be based upon the findings in the underlying action with respect to the spoliation of evidence.  

Plaintiff’s Case Didn’t Have a Prayer - Church Wins Summary Judgment

In New York, religious intuitions are not exempt from the duty to maintain real property in a reasonably safe condition so as to prevent the occurrence of foreseeable injuries.   

In Morris v Saint Francis Cabrini R.C. Church the Plaintiff sought to recover damages for injuries allegedly sustained at the Saint Francis Cabrini RC Church while attending a Saturday mass.  Plaintiff’s claim focused on the Church’s alleged negligence in maintaining a kneeler in one of the Church's pews.

The court granted the Church summary judgment dismissing the complaint and holding the Church had demonstrated sufficient proof that the kneeler in question was not defective, and that the Church neither created nor had actual or constructive notice of the allegedly defective kneeler.  The Church put forth a plethora of evidence regarding the inspection and repair of the kneelers inside the Church.  The court also specifically pointed to the deposition testimony of the Church’s priest who testified that the Church was cleaned every Friday, and that there were no reports of any defective kneelers the day before Plaintiff’s accident.  The Church also set forth evidence that the Church’s priest, maintenance man, and business manager all examined the allegedly defective kneeler two days after the accident and found no defect.  Moreover, the court pointed to Plaintiff’s own deposition testimony wherein she testified that she never complained to the Church about the kneeler being defective or dangerous, and that she continued to sit in the same pew where the accident took place without further incident during subsequent masses at that Church.    

In opposition, the Plaintiff put forth an affidavit from a party who did not witness the accident and an affirmation from Plaintiff’s attorney.  The court was not swayed by the Plaintiff’s submissions, finding the affidavit from the party who did not witness the accident “merely raise[d] feigned issues of fact unsupported by [the Plaintiff’s] own description of the [accident]” and that an affirmation from an attorney having no personal knowledge of the facts is insufficient to raise a triable issue of fact to defeat a motion for summary judgment. 

Despite the seriousness of Plaintiff’s injuries, there was a mountain of evidence in the Church's favor that Plaintiff could not be overcome. The court essentially concluded that sometimes an accident is just an accident, and it would be too speculative to blame the Church.  

The Wheels of Justice (Sometimes) Grind Exceedingly Slowly

W was still in the White House, LinkedIn let users add a profile picture for the first time, and the original iPhone had just been released.  In case those clues didn’t give it away, QBE Insurance Corporation had to wait almost 10 years for a favorable decision in a case with an uncomplicated fact pattern. 

915 2nd Pub, Inc. v QBE Insurance Corporation is a cautionary tale for insurance company defendants served with a suit they believe is worthy of immediate dismissal based upon straightforward policy provisions.  A review of the documents available online reveals that the parties, and the trial court, became mired in discovery-related issues that were of no consequence in the unanimous decision recently issued by the Appellate Division, First Department. 

In a concise decision, the court laid out the applicable facts: (1) excavation performed on the adjacent property caused structural damage to plaintiffs’ building; (2) plaintiffs submitted an insurance claim to QBE and also negotiated a sale of its property to the adjacent property owner (who allegedly caused the damage); (3) the purchaser paid what he called a “crazy price for the property” to plaintiffs, hoping to dispose of any liability from the excavation; and (4) plaintiffs filed this lawsuit to recover under the QBE insurance policy.

The QBE insurance policy, like almost every other insurance policy, required plaintiff to cooperate with QBE’s investigation of the claim. However, immediately after the sale of the property, and before plaintiff and QBE had reached an agreement on the amount to be paid under the policy, the purchaser demolished the building. As a result, there was nothing left for QBE to investigate.  The court found this to be a clear violation of the QBE insurance policy.

Moreover, the QBE insurance policy contained a fairly common provision that required plaintiff to do everything necessary to secure, and do nothing after the loss to impair, QBE’s subrogation rights. In selling the building to the entity that damaged it, plaintiffs clearly violated another straightforward policy provision. 

Kudos to the First Department for resolving a nearly decade-old case in a couple of months. 

Restaurant Demonstrates Entitlement to Summary Judgment

Slip and fall accidents during the winter plague business owners. No matter how many precautions a business may take to avoid such incidents, the occasional slip and fall is bound to happen inside or outside of commercial premises. In fact, slip and falls account for over one million emergency room visits each year.

Even the most seemingly benign incidents can turn into a lawsuit that heads to trial, with the verdict left in the hands of a jury. However, business owners in the Second Department can take some solace, as courts in that department have held commercial establishments are not required to provide a constant remedy to cover their floors with mats or continuously mop up moisture from rain or snow tracked into their premises. 

In Tappeto v. Bracco’s Clam & Oyster Bar, Inc., the defendant restaurant moved to dismiss the plaintiff’s complaint for personal injuries allegedly sustained at the restaurant after a slip and fall.

During her deposition, the plaintiff testified she slipped and fell after walking inside the restaurant about five minutes after it began to rain. The plaintiff claimed the floor of the restaurant became wet from patrons tracking water into the restaurant on their feet and the restaurant’s failure to have any mats on the floor. The restaurant’s owner testified at his deposition that his staff would mop rainwater spills when it rained.  Also, the restaurant’s manager testified that floor mats were placed in front of every door leading to the outside. The manager further testified that when it rained, there were always mats at every door. 

In his decision, Nassau County Supreme Court Justice Thomas Feinman found the restaurant demonstrated an entitlement to summary judgment. The court reasoned that, by showing it did not create the condition causing the plaintiff’s fall and it did not have actual or constructive notice of the condition, the restaurant could not be found liable for the plaintiff’s slip and fall. The court also found, among other things, that because the restaurant had no prior complaints from anyone slipping inside the bar, coupled with the plaintiff’s deposition testimony that she slipped and fell inside the restaurant about five minutes after it began to rain, the restaurant could not have sufficient notice of the condition. 

 

Snowy Sidewalk Slip and Fall on Long Island. Am I Liable?

The snow season is about to begin, and with it, so will the rise of slip and fall accidents.  Some winters can be relentless. For some reason, 20 inches of snow in March just does not drum up those same feelings as a “White Christmas.” Shoveling the sidewalk in front of your home can feel like a cruel joke after spending hours digging your car out of the driveway in order to get to work.  The nagging question that typically results in the homeowner shoveling the sidewalk is: “What happens if someone slips and falls on my sidewalk that has not been shoveled?” --and for good reason.  Slip and fall accidents involving snow and ice are very dangerous and often result in serious injuries. But are you legally obligated to shovel the sidewalk in front of your home? 

Most towns, villages, and cities have specific ordinances that require property owners to clear the sidewalk in front of their property. However, such ordinances do not necessarily create a legal duty owed to a pedestrian walking on the sidewalk in front of your home. 

Indeed, a homeowner’s failure to clear the sidewalk in front of his/her home in the Town of Hempstead does not automatically create liability for the homeowner for a slip and fall on snow or ice. The Town of Hempstead is actually responsible. However, the Town must have received prior written notice of the dangerous sidewalk conditions (which is often difficult in the case of weather-related conditions like snow and ice) in order to impose liability on the Town. The Village of Garden City has a comparable ordinance. Similarly, the Town of North Hempstead Code does not contain language imposing tort liability on abutting landowners for the breach of a duty to maintain sidewalks in a reasonably safe condition.  See Code of the Town of North Hempstead §§ 48-1 to 48-15.

However, many other municipalities on Long Island, including the Village of Mineola, Village of Hempstead, and the Town of Oyster Bay, have ordinances that specifically create a legal duty for abutting property owners for injuries caused by unsafe conditions (such as snow and ice) on sidewalks.  

The Code for the Village of Mineola reads as follows:

In the event that the owner and/or occupant of any premises abutting a sidewalk, path and/or public thoroughfare shall fail to [remove snow and ice], and personal injury . . . shall result from such failure, the owner and/or occupant of the premises shall be liable to all persons who are injured . . . as a result of such noncompliance.

The Code for the Village of Hempstead specifically requires that “[t]he owner [or] occupant of any real property shall, within 12 hours after the snow ceases to fall, remove the snow from the paved public walkway adjacent to such real property and keep the same free from snow and ice . . . In the event that personal injury or property damage shall result from the failure of any owner or occupant to comply with [the requirement to remove snow,] the owner and the occupant shall be liable to all persons injured or whose property is damaged directly or indirectly thereby and shall be liable to the Village of Hempstead . . .”

The Town of Oyster Bay's Code specifically provides that:

Each owner and occupant of any house or other building . . . in the Town shall keep the sidewalk in front of the lot or house or building free from obstruction by snow or ice and icy conditions . . . Snow and ice shall be removed within six hours after snow has ceased to fall . . . Such owner or occupant . . . shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk or for a violation or nonobservance of the ordinances relating to making, maintaining and repairing sidewalks . . .

Accordingly, if you live in a town or village with ordinances that specifically impose liability, you have a duty to keep the sidewalk abutting your property in reasonably safe condition. This means not only clearing the sidewalk of snow and ice, but also applying salt or sand.

If you do not live in a town or village with such ordinances, you might not be found liable for a slip and fall, but it does not mean a plaintiff’s attorney will not try to blame you for the incident.  In any event, you will likely still shovel your sidewalk in an effort to be a good neighbor. Who likes that one neighbor on the block who doesn’t shovel anyway?

You should thoroughly read your local village or town code (most are available online) for more answers.    

For Those Who Face Foreclosure: Fear Not. Here are Five Fast Alternatives.

Nationally, foreclosures have dropped significantly over the last few years. However, the lingering effects of the housing-market collapse, which started almost a decade ago, will continue in 2017 and beyond. In fact, approximately one third of all civil cases in New York State courts are foreclosure actions. In 2015, more than 40,000 new foreclosure actions were filed throughout the state (which is only a few thousand fewer cases than were filed at the height of the housing collapse in 2009). Notably, 60 percent of New York State’s foreclosure actions were commenced in four counties in the metropolitan area, including Brooklyn and Queens. 

The thought of losing a home can be daunting. However, foreclosure actions have wide-ranging resolutions that do not always result in the loss of the home. Here is a list of potentially viable alternatives to succumbing to foreclosure: 

1.      LOAN MODIFICATION

You may be able to conduct negotiations with your lender to complete a loan modification to modify the terms of your agreement with your lender—such as the payment amount, interest rate, length of the loan, etc.

2.      FORECLOSURE DEFENSE LITIGATION STRATEGY

You can take an aggressive foreclosure defense approach against the allegations of the lender – challenging the validity of the foreclosure proceedings and the lender’s compliance with regulations in initiating the foreclosure proceeding. This includes, among other things, questioning whether the lender violated any of your rights (predatory lending practices) or whether there are procedural violations with the foreclosure.    

3.      CHAPTER 13 BANKRUPTCY

Filing for Chapter 13 bankruptcy will place an automatic stay on foreclosure proceedings. This option can provide you with time to figure out a resolution and may allow you to keep your home. If you stay current on your loan payments and make up the arrears through your Chapter 13 bankruptcy plan, the lender cannot foreclose.  

4.      SHORT SALE

A short sale may enable you to sell your home for less than the balance of your loan. However, the short sale must be negotiated and approved with your lender in advance to ensure you are not held accountable for the difference between the sale and your loan balance.

5.      DEED IN LIEU OF FORECLOSURE/CASH FOR KEYS

Deed in Lieu of Foreclosure and Cash for Keys are options wherein a homeowner agrees to give back the property. With a Deed in Lieu of Foreclosure, the homeowner agrees to give back the home without requiring the bank to complete a formal foreclosure proceeding. Cash for Keys is a similar option, except, in this case, the lender offers a cash incentive for the homeowner to give back the home and leave it in good condition without waiting for the entire foreclosure process to conclude. These options can be advantageous to a defaulting homeowner, as they allow for forgiveness of the remaining debt, avoid the publicity of a foreclosure, and have less of an impact on his or her credit. Lenders typically prefer these options, as they reduce the time and expense of litigating a foreclosure proceeding to conclusion in New York.