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Regardless of whose duty it was to maintain the sidewalk at the bus stop location, the City, M Realty and A Realty all argue that plaintiff’s complaint should be dismissed on the premise that plaintiff cannot establish exactly where she fell, and thus, has not made out a prima facie case of negligence. A 50-h injury hearing was held at the NYCTA offices on July 6, 2004.

At plaintiff’s 50-h hearing, plaintiff stated that she fell in the street after she stepped off the bus. In pertinent part, she stated that she exited from the front of the bus and either she stepped from the bottom step of the bus to the sidewalk and then slipped, or, she had taken two steps from the bus before her accident took place. Her 50-h testimony also indicated that both feet were off the bus and her right foot made contact with the street. She also stated that she put her other foot towards the sidewalk and then she slipped on the ice that was on the sidewalk.

Based on the plaintiff’s testimonies at the 50-h hearing and her deposition this court finds that plaintiff has established a prima facie case of negligence. The court reiterates that a question of fact exists as to who cleared the three-foot path on the sidewalk area immediately surrounding the bus stop where plaintiff was injured.

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With regard to plaintiff’s claim for abuse of process, FVA has demonstrated prima facie entitlement to summary judgment. In order to prevail on a cause of action a plaintiff must demonstrate that defendant: (1) caused the issuance of regularly issued process either criminal or civil; (2) with the intent to do harm without excuse or justification; (3) that the process was perverted to obtain a collateral advantage; and (4) that the process unlawfully interfered with plaintiff’s person or property. As discussed above, to the extent that plaintiff must prove all elements, a defendant obtains summary judgment if he negates the existence of any one of the elements.

FVA has demonstrated prima facie entitlement to summary judgment insofar as it has demonstrated that the process herein, namely, the reparation action, was not perverted in any way so as to obtain a collateral advantage. The witness establishes that the reparation action was commenced and prosecuted for a legitimate purpose, namely to recover money which GROWERS felt it was entitled to recover insofar as plaintiff had fraudulently obtained the same. To the extent that the purpose of the reparation action was to recover money and the same was GROWERS’s goal, it cannot be said that the process was perverted to obtain a collateral advantage. Based on the foregoing, FVA has demonstrated prima facie entitlement to summary judgment with regard to the abuse of process claim.

FVA has demonstrated prima facie entitlement to summary judgment with regard to plaintiff’s claim asserting fraud. It is worth noting that injury plaintiff never opposes this portion of FVA’s motion and as such, summary judgment is granted on default. Nevertheless it is well settled that a cause of action for fraud or misrepresentation requires proof that defendant misrepresented an existing fact, falsity, scienter, justifiable reliance by the plaintiff and damages. The Court finds that FVA’s evidence demonstrates an absence of misrepresentation, falsity or scienter. As such, FVA has established prima facie entitlement to summary judgment with regard to the cause of action for fraud.

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Here, plaintiff’s accident arises out of the same facts and circumstances as the RN accident, as they were both employees of Rockledge and were standing on the same area of the sidewalk shed when it collapsed on July 12, 2003. Mr. OC and Mr. RN each asserted claims under Labor Law § 240(1) in their respective actions against defendants C and BW. The Bronx County court in the RN action determined that under the provisions of Labor Law § 240(1), these defendants were liable for the accident. C and BW had a full and fair opportunity to contest Mr. RN’ motion for summary judgment and they submitted opposition to that motion.

Defendants’ assertion that there has been a change in the facts and the law since the Bronx County decision and order of August 26, 2005 is rejected. The facts, as presented to the Bronx County court in 2005, have not changed. The jury in the indemnification trial was only required to determine whether York had any liability for the accident under the theory of contractual indemnification. The jury did not address the issue of whether C and BW were liable for the accident as this issue had already been determined. To the extent that C and BW assert that the jury verdict as to York affected the outcome of the RN summary judgment motion, it is noted that subsequent to the verdict of September 7, 2006 these defendants did not seek to reargue or renew the August 26, 2005 order and did not seek to perfect an appeal from that order. Moreover, during the course of the indemnification trial, these defendants admitted and represented to the jury that RN was engaged in a protected activity under Labor Law § 240(1) at the time of his injury and that they had been found liable for his injury.

The court further finds that there has been no change in the law since the Bronx County court determined RN’ motion for summary judgment on the issue of liability. Defendants seek to rely on Beehner v Eckerd Corp., which was decided on November 30, 2004. In Beehner the court found that the retrieving of a serial number and other information after the work was completed was not a covered activity, and thus there was a bright line separating the enumerated and nonenumerated work. A review of the motion papers submitted in the RN summary judgment motion, which are submitted as exhibits here, reveals that the defendants’ opposing papers are dated March 7, 2005, some three months after the Beehner decision, and that defendants made no mention of Beehner. The Bronx County court did not render its decision until August 2005, some ten months after Beehner was decided.

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Upon the foregoing papers the motion and the cross motions are determinated as follows:

Plaintiff OC and RN were both employed by Rockledge Scaffolding Corp, and they each sustained personal injury on July 12, 2003, when a portion of the sidewalk shed they were in the process of dismantling collapsed, causing them to fall some 20 feet. The sidewalk shed was constructed in 2000 alongside a building known as 275 West 96th Street, in Manhattan. It is undisputed that Mr. OC and Mr. RN were not provided with any safety devices. Defendant C Condominium is the owner of the building and defendant BW Management Group, Inc. (BW) is its managing agent. On July 20, 2001 C entered into a contract with York Restoration Corp. (York) to perform exterior masonry restoration and repair work to the building’s facade.

RN commenced an action in the Supreme Court, Bronx County against BW, Donald E. Wilson, York and C (Index No. 23398/03) to recover damages for personal injury he sustained in this construction accident. That court, in a decision and order dated August 26, 2005, granted Mr. RN’s motion for partial summary judgment on his Labor Law § 240(1) claims against BW and C, and denied the motion as to York, as an issue of fact existed as to York’s responsibility for the accident, and as to whether York was a general contractor, within the meaning of the Labor Law. The court also determined that Mr. RN’s request for summary judgment on his other Labor Law claims were moot. York’s motion for summary judgment dismissing the complaint and all cross claims was denied, and Blue Wood’s cross motion to dismiss the complaint and the cross claims for indemnification were denied.

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An MRI of plaintiff’s cervical spine was made in April 1998, apparently also upon her reference. According to the unsworn and unaffirmed MRI report dated April 17, 1998, the only abnormality the MRI revealed was “central disc herniation at C3-C4.” “No other focal disc herniation is seen,” reported. The report of another physician based on an examination of the same MRI, dated September 14, 1999, reached a different conclusion. The doctor who affirmed his report made the following findings: “Review of actual MRI of the claimant’s cervical spine failed to reveal an acute herniated disc at any level and no herniated disc at the particular C3-4 level as mentioned in the radiology report.”

In moving for summary judgment in this action, defendants submitted MRI report, as well as his affirmed report based on an examination of plaintiff conducted in May 1999. The examination report noted that plaintiff’s stated height was 5 feet, 3 inches, and her weight was then 290 pounds. From the examination, the doctor concluded: “Plaintiff is not disabled as a result of that accident of December 25, 1997 and requires no further orthopedic care or physical therapy. There are no objective findings at this time to confirm the presence of an acute herniated disc in the area of the cervical spine related to the accident of 12/25/97.”

Among other things, the doctor took range of motion measurements for both the cervical and lumbar spine. The doctor noted that “examination of both upper extremities reveals full range of motion of shoulders, elbows, wrist, and hands with no pain noted.” He further noted that, with regard to her lower extremities, plaintiff had “bilaterally negative straight-leg raising tests.”

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Labor Law § 240(1) states that all “contractors and owners and their agents, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, ladders, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.” The purpose of this statute is to “protect workers by placing the `ultimate responsibility’ for worksite safety on the owner and general contractor, instead of the workers themselves”.

Once it is determined that the owner or contractor failed to provide the necessary safety devices required to give a worker “proper protection,” absolute liability is “unavoidable” under Labor Law § 240 (1), even if the injured worker contributed to the accident. An owner or contractor who breaches that duty may be held liable in damages regardless of whether it actually exercised supervision or control over the work. Labor Law § 241(6) concerns safety conditions in “areas in which construction, excavation or demolition work is being performed.” Allegation of a violation of an Industrial Code regulation is a prerequisite to an action under this section of the statute. Absent direction or supervision of the construction work, it has been held that engineers cannot be held liable for injury under Labor Law § 241(6).

To establish a prima facie case of negligence, a plaintiff must demonstrate (1) that the defendant owed him a duty of reasonable care, (2) a breach of that duly, and (3) a resulting injury proximately caused by the breach. The threshold question in tort cases is whether the alleged tort feasor owed a duty of care to the injury party. It is the court’s responsibility to determine whether there is a duty, and “involves a very delicate balancing of such considerations as logic, common sense, science, and public policy”. There must be proof of supervision or control of the work, in order for an engineer to be held liable, and absent such supervision, there is no negligence for the failure to provide a safe place to work as a matter of law.

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A Bronx Estate Lawyer said that, by decision and order dated November 12, 2008, the motion brought by fourth-party defendant to dismiss the cause of action in the fourth-party complaint sounding in common law indemnification and contribution, was granted for the reasons stated on the record at oral argument. Remaining to be decided arc the cross-motions by third-party defendant Transportation Group which is defending against claims for indemnification and contribution asserted by NAB Construction Corporation, and by defendant/second third-party plaintiff.

NAB Construction seeks partial summary judgment and dismissal of the Labor Law causes of action, and Parsons Transportation seeks summary judgment and dismissal of the complaint in toto, both moving pursuant to CPLR 3212, and 3211 (a) (1) and (7). Parsons in the alternative seeks leave to amend its answer to add defenses and counterclaims of contractual indemnification and contribution as against NAB. For the reasons which follow, both cross-motions are granted in part and otherwise denied.

This is an action based on alleged violations of Labor Law ^§ 240 (1), 241(6) and 200 and on common law negligence. Plaintiffs seek to recover damages for personal injury sustained by the employee on January 7, 2003, while working as an inspector on the Bronx-Whitestone Bridge. The employee alleges he was injured when he was blown by a wind gust from his position on the bridge cable, causing him to fall to a platform positioned a few feet below.

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Defendants argue that the combination of the permissible WCL exclusion of Dole v. Dow with an otherwise enforceable post judgment assignment agreement creates an unenforceable exclusion to the Workers’ Compensation Law. This personal injury court disagrees.

Defendants’ liability in this case stems from a straightforward application of the Dole v. Dow exception to the Workers’ Compensation Law. The loan arrangement is not an extension of the Dole v. Dow exception. It does not create liability where none otherwise existed. The loan merely permits the enforceability of a judgment which is otherwise permissible under Dole v. Dow. The loan arrangement was expressly approved by the Court of Appeals in Feldman v. NYCHHC, supra.

The subsequent Court of Appeals decision in Gonzales v. Armac Industries, Ltd., 81 N.Y.2d 1, 595 N.Y.S.2d 360, 611 N.E.2d 261 (1993) does not command a different result. In Gonzales the court considered the enforceability of a pre-trial agreement in which a plaintiff agreed not to enforce any judgment against defendant in excess of 2% of the total damages awarded except to the extent loan arrangements were made to permit the plaintiff to collect any monies from the third party defendant. The court held that the pre-trial agreement, which limited defendants’ liability to 2%, was a release from liability within the meaning of sec. 15-108(c) of the General Obligations Law. The court went on to recognize that the agreement did violence to the Workers’ Compensation Law by indirectly allowing an employee to reach beyond an impecunious or insolvent defendant and into the employer’s deep pockets for recovery. Defendants argue that the Court’s decision in Gonzales means that in the context of the Workers’ Compensation Law, Feldman type assignment agreements will not be enforced.

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This motion raises the novel issue about whether a post judgment agreement assigning a defendant’s right to reimbursement from a third party defendant is void as against the public policy of the Workers’ Compensation Law (sometimes “WCL”) where the original plaintiff and the third party defendant are employee and employer. The material facts, although complicated, are not in dispute.

In 1981 TC was severely injured while he was performing demolition work as an employee of B.C. Enterprises, Inc. Mr. TG was precluded by the Workers’ Compensation Law from suing his employer for personal injury. Mr. TG did, however, bring a Supreme Court action in Bronx County against the City of New York, JLW and GKW (Bronx action). The Ws were the owners of the premises which were being demolished at the time of plaintiff’s injury.

Defendants each commenced third party actions against TG’s employer, B.C. Enterprises, Inc. There is no dispute that the third party actions were authorized pursuant to Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972).

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4.) The court evaluator stated that when he met with the person, the person was not able to state why he wanted a guardian or what the guardianship proceedings were about. The court evaluator pointed out that the medical records did not indicate what the cause of his medical problems were. In one report, a medical expert states that he is unsure if the person’s memory problems are due to the depression he suffers from or if they are the result of the brain injury he sustained in the accident. The court evaluator stated that even though the person indicated that he was having difficulty managing his finances, he admitted that he has not had any problems paying his bills. The court evaluator further indicated that there may be a conflict with having R.K. appointed as the guardian since the person is claiming to be a vulnerable person who needs help and his personal injury attorney is the one who introduced him to the potential guardian. The court evaluator further stated that the person should be designated a person in need of a guardian and the guardian should have the limited power of assisting the person with the litigation only.

5. The person’s income and assets at the present time, consist solely of Workers’ Compensation benefits in the amount of $ 1,600 per month.

Upon the testimony adduced at the hearing and the documents submitted as well as the court evaluator’s recommendation, this court finds that the person is a person in need of a guardian of his property for a limited duration. This court will not accept the person’s nomination of R.K. as his guardian due to the apparent conflict involved. The person met R.K. through his personal injury attorney with whom R.K. has a professional relationship. Zealously representing the interests of his proposed ward at a time when his own financial interests might be directly tied in with his associate attorney’s financial interests can amount to competing and conflicting endeavors. Even the appearance of impropriety must be avoided at all costs.

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