Articles Posted in Premises Liability

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Appeal from order, Supreme Court, Bronx County, entered on or about April 17, 2008, which determined the market value of two properties and directed closings thereon, dismissed, without costs.

In 1971 plaintiff JR, M.D., defendant RS, M.D., and a nonparty physician formed a closely held corporation, SAR. The following year SAR purchased a parcel of land in the Bronx. Plaintiff and defendant then bought out the nonparty’s one-third interest in SAR, giving plaintiff and defendant each a 50% interest in it. In 1976 plaintiff and defendant formed another closely held corporation, 91 Graham Avenue Realty Corporation, which purchased a parcel of land in Brooklyn. In 1977 the New York State Department of State dissolved SAR because it had failed to pay franchise taxes; 91 Graham was dissolved in 1980 for the same reason.

In September 2003 plaintiff commenced this action against injury defendant and the two dissolved corporations asserting causes of action to recover damages for fraud, breach of fiduciary duty and under Business Corporation Law § 720. Plaintiff also seeks an accounting from defendant regarding the corporations’ assets and access to the corporations’ records. The gravamen of the action is that defendant attempted to sell both the Bronx and Brooklyn parcels without plaintiff’s knowledge or consent; defendant transferred 91 Graham’s checking and savings accounts to a different bank and removed plaintiff’s name as an authorized signatory on transactions involving those accounts; defendant refused to provide plaintiff with the corporations’ records; and defendant formed a new corporate entity in 2003, SAR 2003, without consulting plaintiff. Defendant answered the action and asserted counterclaims seeking (1) personal injury for breach of fiduciary duty and under Business Corporation Law §§ 722, 723 and 724, (2) declarations that defendant owned two thirds of the shares of SAR because plaintiff agreed to transfer one sixth of his interest in that corporation to defendant if he managed the Bronx parcel, and that a contract of sale defendant executed on behalf of SAR regarding the Bronx parcel was valid, and (3) judicial supervision of the winding up of the affairs of SAR pursuant to Business Corporation Law § 1008.

In March 2004 defendant commenced a proceeding pursuant to article 10 of the Business Corporation Law in Supreme Court, Kings County, to wind up the affairs of 91 Graham. Defendant sought permission to sell the Brooklyn parcel and a declaration that he owns two thirds of the shares of 91 Graham and is entitled to two thirds of the net proceeds of the sale of the parcel. Defendant also sought damages against plaintiff for breach of fiduciary duty and under Business Corporation Law § 720. This proceeding was later consolidated with the Bronx action by an order of Supreme Court, Bronx County.

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The petitioner contends that her motion for leave to renew should be granted because, at the time of her prior motion for summary judgment, she did not possess transcript pages nine through 16 of the decedent’s deposition, the HIPAA form or the rehabilitation center billing statement. She also asserts that in view of the alleged new material, sanctions should be imposed on the objectant and the objectant’s attorney for withholding the transcript and for submitting, in opposition to the summary judgment motion, alleged knowingly false affidavits to the effect that the decedent was domiciled in New Jersey at the time of his death.

In opposition to the motion to renew, the objectant annexes material submitted previously in opposition to the petitioner’s motion for summary judgment and contends that: (1) the alleged new material was available at the time of the prior motion, and the petitioner fails to explain why she prematurely moved for summary judgment before discovery was concluded or why she could not obtain the alleged new material previously; (2) in any event, the alleged new material viewed in conjunction with the petitioner’s deposition testimony does not controvert this court’s finding that there is an issue of fact as to domicile and, due to evidence of a New Jersey domicile, sanctions are not warranted; and, (3) the petitioner’s testimony at her deposition demonstrates that the decedent was domiciled in New Jersey, as he had moved his personal papers to his office, he had only two boxes and a small suitcase of his belongings remaining at the Bronx address when he died, and the petitioner admitted that the decedent was already residing primarily in New Jersey when he died and that she and her son intended to move into an apartment with the decedent in New Jersey after the son’s school year finished.

The petitioner replies that: (1) by withholding the transcript pages and submitting false affidavits in opposition to the prior motion, the objectant and her attorney, in effect, seek to impeach their own witness, the decedent, who was the former client of the objectant’s attorney in the personal injury action; (2) the objectant is not prejudiced by the renewal motion and has failed to controvert the timing of when the alleged new material was discovered; (3) the evidence demonstrates that the decedent had a temporary presence in New Jersey from the time of the accident to the time of his death, and although the decedent intended to move his family to New Jersey in the future, his domicile remained in the Bronx; and, (4) the objectant withheld evidence of the decedent’s Bronx domicile at the time of the motion for summary judgment.

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In this proceeding for the issuance of letters of administration to the petitioner, the decedent’s spouse, the objectant, the decedent’s mother, alleges that the decedent died a domiciliary of the State of New Jersey, and his estate should be administered in that jurisdiction. This court previously denied the petitioner’s motion for summary judgment, holding the issues of fact as to whether the decedent died a domiciliary of Bronx County or New Jersey should be tried first because the court having jurisdiction over the estate should be the court that determines who is entitled to letters of administration under the laws of that jurisdiction (Matter of D’Elia, NYLJ, June 4, 2007, at 29, col 3).

Thereafter, it appears that the parties engaged in further discovery and the following applications were presented: (1) the petitioner’s motion for leave to renew her motion for summary judgment; (2) the objectant’s cross-motion, inter alia, to strike the pleadings for failure to comply with discovery demands or to compel compliance with the demands; (3) the petitioner’s motion to consolidate this proceeding with an action filed by the objectant in Supreme Court, Bronx County (Index No. 36098/07), seeking to annul the marriage between the petitioner and the decedent; and (4) the objectant’s motion to subpoena immigration records. The court ruled from the bench on the return date of the application seeking immigration records that it would “so order” the subpoena. The court further advised the parties that aside from the petitioner’s motion to renew her summary judgment motion, all of the other applications would be held in abeyance until the domicile issue is resolved.

It is undisputed that the decedent and the petitioner were married in New York on April 19, 2004, the decedent suffered injuries in an automobile accident on May 14, 2005, and the decedent commenced an action in connection therewith before he died of unrelated causes on April 13, 2006. In the underlying personal injury action the decedent was represented by the same law firm that represents the objectant in this proceeding.

Following this court’s determination of the petitioner’s motion for summary judgment, the petitioner served a demand for discovery and inspection on the objectant seeking: (1) the entire transcript of the decedent’s deposition taken March 24, 2006 in connection with his personal injury action; and, (2) copies of all hospital and/or other institutional records relating to the care and treatment of the decedent following the May 14, 2005 automobile accident. Among documents provided pursuant to this demand were: (1) the entire transcript of the decedent’s March 24, 2006 deposition and, in particular, pages nine through 16 of that transcript; (2) a HIPAA authorization executed on July 8, 2005 bearing the decedent’s Bronx address; and, (3) a billing statement from a rehabilitation center sent to the decedent at his Bronx address.

The petitioner annexed pages one through eight of the same transcript to her original summary judgment motion, which were considered by the court. In the first eight pages of the transcript and in the pages thereafter produced by the objectant pursuant to the petitioner’s discovery demand, the decedent testified, inter alia, that: (1) he moved to the Bronx address where the petitioner and her son were already living within a week or two after the marriage, and he lived there up to the date of the accident, a little more than a year; (2) he saw the petitioner the weekend prior to his deposition, and spent one or two nights with her in the Bronx in prior weeks; (3) following his hospitalization, he lived at the objectant’s apartment in New Jersey because it had elevators, whereas his Bronx address had stairs, and because it was about one-half mile from the outpatient rehabilitation center; and, (4) when the petitioner’s son completed school in June, he intended to move with her and her son to a new place that did not have stairs.

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In this toxic tort litigation concerning the Pelham Bay landfill, we hold that the reports and findings of the expert epidemiologists and toxicologists satisfy the standard employed in Frye v United States, that of general acceptance in the scientific community. To hold otherwise would deny redress to these plaintiffs, who are living in an area where they are being systemically poisoned by environmental contaminants, and who have presented sufficient evidence to sustain their burden on summary judgment.

The now inactive 81-acre landfill is owned by the City of New York and was operated by the Department of Sanitation from approximately 1963 until 1979. During that time, it was used to dispose of 2,600 tons of solid waste per day. Over the years, residents made complaints about a number of problems at the landfill, including the improper dumping of hazardous materials, odor emanating from the site, and a yellow mist floating through the air. Residents also claimed that the landfill was illegally receiving industrial wastes, including oil, and carcinogenic liquid and solid wastes from corporations in the area.

There has been much personal injury litigation concerning this landfill. In March of 1985, the City commenced an action under the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) against 15 corporate defendants. The City claimed that the corporations had illegally disposed of industrial and chemical waste, containing “hazardous substances” within the meaning of CERCLA, at Pelham Bay, and four other landfills. It asserted that the groundwater had become contaminated, was leaching1 into the surface waters around the landfills, including Jamaica Bay, Eastchester Bay, and Richmond Creek, and was threatening aquifers which are present or potential sources of drinking water for the City’s residents. The City sought recovery of the costs it had incurred in attempting to rid the area of toxins, and damages for injury to natural resources which were affected by pollutants. As a result of that suit, the City was awarded millions of dollars. In 1983, the Pelham Bay landfill was classified as an inactive hazardous waste site by the New York State Department of Environmental Conservation. This classification means that a significant threat to the public health or environment exists, and that personal injury action is required.

Thereafter, in 1985, in response to complaints about dangerous leachate streams and ponds by individuals living in the vicinity of the landfill, the City Department of Sanitation (DOS) signed a consent decree with the State Department of Environmental Conservation (DEC). It admitted that it had allowed leachate to enter the surface and groundwaters in violation of state and federal standards, and that it had allowed hazardous waste to be illegally disposed at Pelham Bay while it was in operation. The 1985 consent decree required DOS to submit temporary and permanent leachate management plans to the DEC. However, DOS did not comply with the 1985 decree and, as a result, in April 1990 DOS and DEC entered into a second consent decree. This required completion of a remedial plan for cleanup of the Pelham Bay landfill by 1995.

During this time, it became public that hazardous waste was being dumped in this highly populated area. As a result, starting in the early 1980s, local citizens formed an organization called the Pelham Bay Task Force, and an adjunct Scientific Advisory Committee (SAC). The purposes of SAC and the Task Force were to put pressure on the City to evaluate the effect of the hazardous landfill on their community.

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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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Defendants C and BW raise the identical arguments in their cross motion to dismiss the complaint and all cross claims. The 120-day period for serving a motion for summary judgment expired on November 11, 2006. This cross motion was served on February 14, 2007, which was 214 days from the filing of the note of issue, and 94 days after the expiration of the 120-day period. Defendant’s claim that their cross motion is timely, therefore, is rejected. In Brill v City of New York, the Court of Appeals held that CPLR 3212(a) permitted a late summary judgment motion upon the showing of good cause, which requires a satisfactory explanation for the untimeliness rather than simply permitting meritorious, nonprejudicial filings, however tardy. No excuse at all, or a perfunctory excuse, cannot be good cause. The Appellate Division, Second Department, in applying Brill to late cross motions has taken two different approaches.

In Thompson v Leben Home for Adults, the court stated that in the absence of such a good cause showing, the court has no discretion to entertain even a meritorious, non-prejudicial cross motion for summary judgment. However, the Appellate Division, Second Department has also stated that a cross motion for summary judgment made after the expiration of the statutory 120-day period may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made seeking relief nearly identical to that sought by the cross motion. An otherwise untimely cross motion may be made and adjudicated because a court, in the course of deciding the timely motion, may search the record and grant summary judgment to any party without the necessity of a cross motion (CPLR 3212[b]). The court’s search of the record, however, is limited to those causes of injury action or issues that are the subject of the timely motion.

Here, plaintiff seeks partial summary judgment on the issue of liability, on the grounds of collateral estoppel based on the RN summary judgment order, while defendants C and BW’ cross-move for summary judgment dismissing the complaint based upon the jury’s verdict in the Bronx County indemnification trial. Since defendants C and BW’ cross motion does not seek relief nearly identical to the relief sought by the plaintiff, and as they have not established good cause for their late cross injury motion, the cross motion is denied as untimely.

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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.

Mr. RN apparently discontinued his claims against York. On September 7, 2006 a jury trial was held in the Bronx County action on Wilson, BW and C’s cross claims against York for contractual indemnification. The sole question presented to the jury was “Did the bike accident of July 12, 2003 involving Rockledge Scaffolding’s employee RN arise out of, directly or indirectly, result from or relate to the work performed by defendant York Restoration Corp. pursuant to its contract with C Condominium, dated July 20, 2001?” The jury returned a unanimous verdict, answering this question in the negative, and the court stated on the record that the cross claimants were not, as a matter of law, entitled to indemnification from York.

OC commenced this action on November 30, 2004 and the note of issue was filed on July 14, 2006. Mr. OC now moves for summary judgment on his Labor Law § 240(1) claims against C and BW on the ground of collateral estoppel. It is asserted that as his injuries arise out of the same accident as that of Mr. RN, and as the issue of these defendants’ liability has already been determined in the RN action, these defendants are precluded from relitigating this issue in this action. Defendants C and BW, in opposition, assert that based on the jury verdict in that action on the cross claims for indemnification, collateral estoppel is inapplicable here. Defendants assert that factual changes regarding the type of work that was being performed at the time of the accident raise new questions as to whether Mr. OC was engaged in an activity enumerated under Labor Law § 240(1) at the time of the accident; whether C and BW are proper parties to this action, as they are not the owner of the sidewalk shed; whether the work performed by Mr. OC involved any alteration of the premises; and whether changes in the law which were not raised at the time of the Bronx County summary judgment decision, affecting completed work would preclude liability under Labor Law § 240.

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Upon analysis of Hill’s nine factors, Dr. Bernard concluded, with a reasonable degree of toxicological certainty, that it was more likely than not that exposure to chemicals emanating from the landfill was the cause of the increased frequency of childhood ALL observed in the plaintiffs.

Dr. Diane Trainor, Ph.D., an occupational and health and safety expert, studied the history of the landfill and analyzed possible exposure pathways. Dr. Trainor noted that it could not seriously be disputed that known toxic substances, long associated with ALL and Hodgkin’s disease, had made their way into the air, ground and water, and that plaintiffs had been exposed to these substances through swimming in Eastchester Bay, eating fish from the bay, ingestion and dermal contact with landfill soils, contact with leachate seeps on sidewalks and jogging trails, eating items grown at a public vegetable garden adjacent to the landfill, and breathing the air in the vicinity of the landfill.

Finally, Dr. Philip Landzkowsky, M.D., opined that numerous studies had found a statistically significant relationship between exposure to benzene and ALL or Hodgkin’s disease, and cited literature finding a relationship between chronic benzene exposure and leukemia injury.

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Furthermore, and critically, in this case, the strength of the epidemiological data alone permits an inference of causation. The Federal Reference Manual on Scientific Evidence notes that courts have permitted an inference of specific causation where the relative risk in an epidemiological study is greater than 2.0. When the relative risk reaches 2.0, an agent is responsible for an equal number of cases of disease as all other background causes. Thus, a relative risk of 2.0 implies a 50% likelihood that an exposed individual’s disease was caused by the agent and permis the inference that [the] individual plaintiff’s disease was more likely than not caused by the substance at issue.

In this case, the relative risks in Bands 1 and 2 were 4.05 and 5.2, respectively, when adjusted for confounding factors, well in excess of 2.0. Thus, according to the Federal Reference Manual, at least as to those plaintiffs suffering from ALL,10 the strength of the relative risk alone is a sufficient basis for a reasonable juror to conclude that the plaintiffs’ illnesses were more likely than not caused by exposure to hazardous substances emanating from the landfill.

The City’s criticisms of Dr. Neugebauer’s study go to the weight of the evidence, not its admissibility. As the Court of Appeals stated in People v. Wesley, possible personal injury infirmities in the analysis of the data, including the methods used to test statistical significance, go to the weight the evidence is to be accorded at trial.

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Dr. Neugebauer opined that the rate of childhood ALL in Band 1 was more than fourfold higher and statistically significantly greater, with an SMR of 4.05, than the rate among persons in Band 4. The rate of childhood ALL among persons in Band 2 was similarly substantially and statistically significantly elevated, with an SMR of 5.2, as compared to persons in Band 4. Dr. Neugebauer noted that the probability that this pattern of increases in rates with increasing proximity to the landfill arose from random error was 1 in 10,000. Dr. Bernard similarly opined that the strength of association was clearly demonstrated by comparisons between Band 1 and Band 2 versus Band 4, showing a very significant relationship between the incidence of childhood ALL and proximity to the landfill.

Plaintiff’s evidence of causation is sufficient under Parker, to establish an increased incidence of ALL as a result of substances emanating from the landfill.

The City contends that it is impossible to establish specific causation because plaintiffs cannot quantify their exposure to any specific toxin. The City insists that in the absence of a specific dose-response analysis, plaintiffs cannot establish that their current ailments were caused by toxins emanating from the landfill. We disagree. In Parker v. Mobil Oil Corp., supra, the Court of Appeals rejected this very argument. The Court recognized that in toxic tort cases it is generally difficult or impossible to quantify a plaintiff’s exposure to a toxin, stating, It is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community. The Court of Appeals noted that in lieu of establishing causation through a dose-response analysis, an expert might, for example, rely on mathematical modeling that would take into account relevant factors in estimating exposure to a toxin, or compare the plaintiff’s exposure to the exposure levels of subjects in other medical malpractice studies.

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