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Published on: September 5, 2015

New York City Transit Authority’s motion for summary judgment granted – Garcia-Martinez v. City of New York, 2008 NY Slip Op 51321(U) (N.Y. Sup. Ct. 6/13/2008)

by Stephen Bilkis

The issue in this slip and fall case is who was responsible for making sure a sidewalk was clear of hazards by properly clearing snow.

Plaintiff Garcia, who was 50-years old at the time of the accident, was seriously injured after stepping off a NYCTA bus in the early afternoon of February 9, 2004. After stepping off the bus and taking a few steps, she slipped on the ice at the bus stop and suffered a fracture that required surgery and pinning. In addition, she suffered multiple disc herniations. The bus stop was located directly in between abutting premises at 1871 and 1873 Amsterdam Avenue. The owner of 1871 Amsterdam Avenue is defendant Moy Realty, and the owner of 1873 Amsterdam Avenue is defendant Amsterdam Realty. The accident occurred after the implementation of the new sidewalk law, Administrative Code of the City of New York (NYCAC) § 7-210, which now places the burden on the abutting landowner to maintain the sidewalk in a safe condition from the building to the street curb.

Based on the serious injuries she suffered from slipping and falling on the ice, Plaintiff Garcia filed a personal injury lawsuit and named several defendants: Moy Realty, Amsterdam Realty, the City of New York, the New York City Transit Authority (NYCTA), and Manhattan and Bronx Surface Transit Operation Authority (MABSTOA). The defendants filed motions for summary judgment dismissing the claim.

Published on: July 30, 2015

New York Appellate Court Rules that Plaintiff Failed to Present Any Triable Issue of Fact

by Stephen Bilkis

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.

Published on: May 4, 2015

New York Appellate Court Grants Partial Summary Judgment in Work Place Accident Case

by Stephen Bilkis

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.

Published on: April 29, 2015

Based on the doctrine of collateral estoppel, defendants in a workplace accident case were precluded from relitigating an issue as to a second plaintiff – Ceja v. Friedland, 2007 NY Slip Op 31837(U) (N.Y. Sup. Ct. 6/18/2007)

by Stephen Bilkis

In a workplace accident personal injury case, the court had to decide the issue as to whether the defendants were precluded from relitigating an issue as to a second plaintiff after having litigated the same issue as to a different plaintiff.

On July 23, 2003, plaintiff Ceja and plaintiff Nunez were injured when a portion of the sidewalk shed they were in the process of dismantling collapsed causing them to fall about 20 feet. Both plaintiffs were employees of Rockledge Scaffolding Corp. The building was owned by defendant Columbia Condominium, and Blue Woods Management Group, Inc. managed it. Columbia had a contract with York Restoration Corp. to perform exterior masonry restoration and repair work to the building’s facade.

Ceja and Nunez filed separate claims based on the injuries they suffered. Nunez filed his first. In his claim, Nunez named as defendants Blue Woods, Wilson, York and Columbia. Nunez filed a motion for summary judgment against each of the defendants. The court granted the motion on plaintiff Nunez’s Labor Law § 240(1) claims against Blue Woods and Columbia, but denied it as to York, as the court determined that there existed a material issue of fact as to York’s responsibility for the accident, and as to whether York was a general contractor as defined by the law. The court also determined that Mr. Nunez’ 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. At a jury trial related to the cross claims by Wilson, Blue Woods, and Columbia against York for contractual indemnification, the jury found in favor of York, concluding that the Wilson, Blue Woods, and Columbia were not entitled to contractual indemnification.

Published on: March 25, 2015

New York Appellate Court discusses “serious injury” requirement pursuant to Insurance Law § 5102 – Brown v. Achy, 2004 NY Slip Op 3703 (N.Y. App. Div., 2004)

by Stephen Bilkis

The issue in this car accident case is whether the plaintiff has sustained a “serious injury” as defined by the New York Insurance Law statute. According to the law, in order for a plaintiff to make a claim for pain and suffering, the plaintiff must have suffered a serious injury. The statute provides examples of what would be considered a serious injury. Some of those examples include: an injury that results in death, dismemberment, significant disfigurement, fracture, permanent loss of a body organ, or significant limitation of use of a body function or system.

The plaintiff and defendant were involved in a car accident. The plaintiff filed a personal injury lawsuit against the defendant based on suffering an injury to her spine including a disc herniation in the accident. The defendant moved for summary dismissal of the case, asserting that the plaintiff did not suffer a serious injury as defined by Insurance Law § 5102 (d).

A motion for summary judgement is a request for the court to rule that the other party has no case. When as in this case the defendant makes a motion for summary judgement, the defendant is asserting that because there are no facts which can be reasonably disputed, the case should not go before a jury at all. In other words, based on the law, the defendant must win because there is no way that the plaintiff can win.

Published on: March 17, 2015

New York Appellate Court Discusses Labor Law 240 (1)

by Stephen Bilkis

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.

Published on: March 15, 2015

Respondent Seeks Indemnification in Construction Case

by Stephen Bilkis

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.

Published on: March 11, 2015

Defendants Argue Post Judgment Assignment Agreement Contrary to Public Policy

by Stephen Bilkis

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.

Published on: March 6, 2015

Court Discusses Worker’s Compensation Law as it Applies to Post Judgment Assignment of Reimbursement

by Stephen Bilkis

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).

Published on: February 19, 2015

New York Appellate Court Decides Whether to Appoint a Guardian

by Stephen Bilkis

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.