Articles Posted in Work Injury

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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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Within its answer FVA interposes a counterclaim. FVA, in its counterclaim, alleges that in April 2002, GROWERS filed a complaint against plaintiff for reimbursement of unauthorized adjustments. On February 6, 2002, the USDA issued a decision in GROWERS’s favor. Plaintiff filed an appeal in the SDNY. Subsequently, plaintiff and GROWERS reached a settlement and GROWERS withdrew its complaint. Plaintiff commenced the instant action against FVA despite knowledge that FVA was not a party to the actions between GROWERS and plaintiff, despite knowing that it had no viable cause of action and despite knowledge that the Court of Appeals, Second Circuit issued a decision affirming the USDA’s decision in favor of a seller in a case involving identical facts. Plaintiff, knowing that the allegations against FVA were false, willfully and maliciously prayed upon FVA for the sole purpose of extorting and defrauding FVA. FVA seeks punitive damages in the amount of $500,000 and seeks to recover legal fees incurred in connection with the instant action.


FVA’s motion seeking summary judgment over plaintiff in the instant injury action is hereby granted. Preliminarily, the Court notes that a review of the pleadings in the instant action evinces that plaintiff have failed to state a cause of action for malicious prosecution, abuse of process, and fraud. Similarly, FVA has also failed to state the very same causes of action in its counterclaim. One need only look at the elements of the aforementioned causes of action, which have been adequately detailed above, and it becomes abundantly clear that the allegations within the pleadings fail to assert the same. Hence, were it not for legal obstacles precluding the same, the plaintiff’s complaint and FVA’s counterclaim would fail pursuant to CPLR §3211(a)(7), inasmuch as they fail to state a cause of action.

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Defendant FRUIT AND VEGETABLE ASSOCIATION (FVA) moves seeking an Order granting it summary judgment over plaintiff in the instant action. FVA avers that summary judgment is warranted for a host of different reasons. With regard to plaintiff’s cause of action for malicious prosecution, FVA avers, inter alia, it had probable cause to initiate the prior proceeding upon which the instant action is premised. With regard to plaintiff’s cause of action for abuse of process, FVA avers, inter alia, that it had no intent to harm plaintiff when it initiated the instant action. With regard to plaintiff’s cause of action for fraud, FVA avers that it did not misrepresent any facts to the plaintiff with an intent to deceive. FVA also seeks summary judgment on its counterclaim against plaintiff for malicious prosecution. FVA avers that summary judgment on its counterclaim is warranted insofar as plaintiff commenced the instant action absent probable cause. For the reasons that follow hereinafter, FVA’s motion is hereby granted in part.

The instant action is for alleged personal injury premised upon malicious prosecution, abuse of process and fraud. The complaint alleges that plaintiff is a buyer, in the business of buying tomatoes from various farmers and shippers which it then sells to consumers and purchasers. Defendant TOMATO GROWERS (GROWERS) is a tomato shipper.

The United States Department of Agriculture (USDA) is mandated by statute to provide produce inspections to both shippers and wholesalers. Said inspections are designed to ensure that the produce meets defined standards. In 1997-1999 plaintiff through a broker contracted to purchase various shipments of tomatoes from GROWERS. When certain shipments were received by the plaintiff they were not of the quality contracted. As a result, GROWERS, knowing that the tomatoes were not of the quality contracted, granted plaintiff a price reduction. In 1999, the United States Government (Government), conducted an investigation called “Operation Forbidden Fruit” (OFF) wherein it undertook to investigate USDA inspectors and shippers at the Hunts Point Market (Market), located in Bronx County, New York. Nine USDA inspectors were indicted for accepting bribes from the buyers and several of the buyer’s employees were indicted for bribing USDA inspectors. One of the employees indicted was S an employee with the injury plaintiff. Eight USDA inspectors pled guilty to the charges and a ninth ultimately pled guilty as well, but not before cooperating with the Government and its investigation.

Plaintiff alleges that on March 27, 2000, FVA filed an informal complaint with the USDA on behalf of GROWERS and against plaintiff. GROWERS, despite knowledge that the adjustments on tomatoes sold to plaintiff were warranted, sought reimbursement for the adjustments. GROWERS sought reimbursement on eight loads of tomatoes despite previously granting plaintiff an adjustment on many other shipments and failed to seek reimbursement on a load of tomatoes which was part of S’s indictment. In April 2001, FVA filed a formal complaint with the USDA on behalf of GROWERS and against plaintiff seeking reimbursement for adjustments granted to plaintiff totaling $38,000 plus interest and costs.

On February 6, 2002, the USDA issued a decision awarding GROWERS the damages it sought. Plaintiff subsequently sought an appeal of the USDA’s decision in the United States District Court, Southern District of New York (SDNY) pursuant to the Perishable Agricultural Commodities Act (PACA). Upon plaintiff’s filing of the appeal, GROWERS discontinued its action with prejudice, withdrew its complaint with the USDA, and executed a stipulation dismissing the action.

Plaintiff’s first cause of action alleges that the stipulation dismissing the action was an adjudication that defendants had no factual or legal basis to file the complaint with the USDA. It is alleged that defendants knew that the allegations in the complaint were false and that they were nonetheless wrongfully and willfully made with the intent to extort and defraud the plaintiff, using OFF and the guilty pleas resulting therefrom as a basis. As a result of defendants’ abuse of process, commencement, and prosecution of the prior actions, accident plaintiff was caused to expend time, energy and $50,000 in defending the action. As a result of defendants’ actions designed to extort and defraud plaintiff, $500,000 in punitive damages is sought. Plaintiff’s second cause of action, albeit in a more brief fashion, reiterates the first cause of action.

To Be Cont…
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XYZ previously moved to dismiss the verified complaint against it, together with any cross-claims; or to treat the motion as one for summary judgment and declare that XYZ has no obligation to defend or indemnify Rx or CCI and no obligation to reimburse AAA in connection with the underlying lawsuit or third party personal injury actions.

Under Insurance Law, an insurer wishing to disclaim liability or deny coverage for death or bodily injury must “give written notice as soon as reasonably possible of such disclaimer or denial of coverage.” A failure to give such prompt notice precludes an effective disclaimer or denial. Timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage. Further, an insurer’s explanation is insufficient as a matter of law where the basis for denying coverage was or should have been readily apparent before the onset of the delay.

The Court finds that XYZ’s disclaimer under Insurance Law §3420(d(2) was timely, as the basis for denying personal injury coverage was not readily apparent. The documentation attached to Rx’s Tender Letter did not provide sufficient facts to enable XYZ to disclaim coverage on the grounds of the Employee Exclusion or the Contractual Liability Exclusion provisions of the policy.

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In this construction accident case, Defendant, an insurance company (“XYZ”) moves for an order: (1) pursuant to CPLR§3211(a)(1) and (7), dismissing the summons and complaint against XYZ, together with any and all cross-claims asserted or to be asserted against XYZ; and (2) pursuant to CPLR§8101 and 22 NYCRR §130-1.1, awarding XYZ its costs, including reasonable attorney fees, on this injury motion. XYZ’s motion is decided as hereinafter indicated.

The relevant facts are as follows: Mr. F claims that he was injured on May 26, 2003, at a construction site at XXX East Tremont Avenue, Bronx, New York, when he was caused to fall off a scaffold as a result of negligence by certain parties. On December 7, 2004, Mr. F commenced an action to recover monetary damages for injury allegedly sustained in the aforesaid accident (the “Mr. F lawsuit”). By letter, dated February 8, 2005, the law firm of FCC, LLP, filed a claim on behalf of its client, Rx Construction Co., Inc. (“Rx”), a defendant in the Mr. F lawsuit, demanding that XYZ defend and indemnify Rx in that action (“Tender Letter”).

More specifically, the Tender Letter asserts that, on May 26, 2003, Mr. F was injured in the course of his employment with XYZ’s insured, CCI; and that defendant CCI (as subcontractor) had entered into a contract with Rx, which contained a defense and indemnification provision in favor of Rx, as well as a provision requiring CCI to procure and maintain commercial general liability insurance and commercial umbrella, endorsed to name Rx as an additional insured on a primary and non-contributing basis.

XYZ disclaimed coverage by sending two letters; both dated March 7, 2005. The first letter was addresses to CCI. That letter disclaimed coverage based upon the Employee Exclusion and the Contractual Liability Exclusion. The second letter was addressed to Rx’s attorneys. This letter disclaimed coverage, stating that a copy of the denial letter to CCI Construction, Inc., which should be self-explanatory, was enclosed, and that the policy provisions cited as the basis for denial of CCI Construction Inc.’s claim also apply to Rx.

On September 15, 2009, Rx and AAA Insurance Company (“AAA”) commenced this action against CCI and XYZ, seeking, inter alia, a declaratory bite judgment that XYZ must afford additional insured coverage to CCI, contractual indemnification to Rx and AAA, and reimbursement for all attorney’s fees incurred as a result of the Mr. F lawsuit.

To Be Cont…
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Three of the eight officers allege a discrete episode within the applicable limitations period; one officer alleges a discrete episode within the limitations period, which exacerbated a prior hearing loss resulting from long time exposure to firearm noise occurring outside the limitations period; and the remaining officers claim that they gradually became aware of hearing loss over the course of many years of firing range practice.

It is undisputed that defendant Mine supplied the “Noisefoe Mark IV” to the New York City Police Department for use as safety equipment against ear injury at firing ranges between 1982 and 1989. The hearing protectors supplied by Mine had a noise reduction rating of 23, meaning that based on continuous noise, the use of the hearing protector would reduce noise levels by 23 decibels. The plaintiffs contend that the “Noisefoe Mark IV” was inadequate.

Each of the individual police officers contends that he suffered hearing loss as a result of exposure to the noise of gunfire at New York City Police Department firing ranges. Each plaintiff generally underwent firearms training twice each year. Some of the plaintiffs assert that they are unable to pinpoint an exact time or accident which allegedly resulted in a loss of hearing. For example, plaintiff Pepitone claims he sustained a gradual hearing loss after an unspecified discrete accident. Pepitone’s complaint alleges that between the years 1973 and 1992, plaintiff was regularly exposed to the sound of gunfire. On March 23, 1991, plaintiff served a notice of claim for an alleged hearing loss resulting from exposure to gunfire noise.

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The present action represents eight consolidated actions. Each of the plaintiffs is or has been a New York City police officer who alleges that he suffered hearing loss from a discrete episode and/or as a result of exposure to the noise of gunfire during firearms training, and that the noise protection devices provided to the officers were defective product.

Defendant City of New York moves pursuant to CPLR 3211 and 3212 for summary judgment dismissing the complaints herein on the grounds that: (1) the claims are untimely, (2) the safety equipment provided was adequate, and (3) the City’s choice of safety equipment was a discretionary, governmental act, and thus immune from injury liability.

Defendant Mine Safety Appliance Company similarly moves (by separate motions) for summary judgment dismissing the complaints of all plaintiffs, contending: (1) that the plaintiffs’ actions are time-barred; (2) that the failure to preserve the actual hearing protectors constitutes spoliation warranting dismissal of the actions; (3) that the plaintiffs have not established that defendant Mine manufactured the specific safety devices used by them; (4) that plaintiffs cannot establish a prima facie case in products liability; and (5) that the complaint of plaintiff Carroll should be dismissed for failure to prosecute, and the complaint of plaintiff Hernandez should be dismissed based on estoppel.

The issues presented by these actions, which have been commenced by eight police officers (each of whom claim a hearing injury as a result of negligent exposure to gunshot noise), are troubling, especially since they may require determinations which may be inconsistent and unfair.

Despite a remedial amendment to the CPLR and subsequent bright line decisions interpreting this legislation, the lines of demarcation are still not lucid; and, in this court’s opinion, the issues presented herein are still open and unresolved.

CPLR 214-c provides in relevant part: Notwithstanding the provisions of section 214, the three year period within which an action to recover damages for personal injury caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.

It should be noted that the above CPLR provision provides no further definition for the word substance, and the Court of Appeals has held that the statute only applies to toxic substances. Although normal sound is benign and therefore not encompassed by CPLR 214-c, can sound nevertheless be considered a substance, and if so, should a toxic quantity of such harmful sound be considered within the purview of the remedial CPLR amendment? If CPLR 214-c is held not to apply to toxic sound, should the negligent infliction of repetitive stress on the eardrum caused by toxic sound, come within the exception created by the Court of Appeals in Blanco for repetitive stress injuries? Based upon the lack of sufficient expert testing and the underdeveloped circumstances in this case, the accident court declines to follow Martzloff and Casson at this time.

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ZG does not argue that the notice of claim was timely. Instead she argues that AIIC’s denial of coverage was itself defective and consequently may not be raised as a defense. On April 13, 1990 AIIC wrote separate letters to B.C. Enterprises, Inc. and the City of New York disclaiming coverage. The letter to B.C. Enterprises provides in pertinent part: Thus, to the extent that B.C. Enterprises did not provide any notice to Atlanta International Insurance Company of the occurrence giving rise to the claim against it by the City of New York until nine years after said occurrence, it is clear that B.C. Enterprises failed to comply with Section 4 of policy GLA 6081, requiring notice of an occurrence as soon as practical.

Accordingly Atlanta International Insurance Company expressly reserves all rights under the policy and available at law to deny coverage and/or rescind the policy on the basis of B.C. Enterprise’s failure to comply with the notice of occurrence provision in said policy.

The letter to the City of New York is similar in content.

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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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ZG commenced this action against both SIF and AIIC claiming that pursuant to the Bronx judgment, the partial satisfaction of judgment, the assignment of judgment and the insurance policies each defendant issued, they are required to reimburse her for the $10,000 paid to TG in satisfaction of the judgment against the Ws.

SIF moves for summary judgment dismissing the complaint against it on the ground that the assignment agreement is void and unenforceable pursuant to the public policy of the Workers’ Compensation Law. ZG cross-moves for summary judgment against both defendants. SIF claims that in effect the assignment agreement is a scheme by which an employer (or its insurer) is forced to compensate its employee beyond that which is otherwise allowed under the Workers’ Compensation Law. ZG claims that the assignment agreement is a bona fide transaction, recognized as valid in the Court of Appeals in the case of Feldman v. New York City Health & Hosps.Corp.

AIIC also cross-moves for summary judgment dismissing the complaint against it on the same grounds as SIF and on the additional ground of late notice.

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