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Plaintiff commenced an action against Target Corporation and All Jersey Janitorial Services, Inc. to recover damages for injuries she sustained after she slipped and fell in a Target store.  Plaintiff alleged that she was caused to slip and fall as a result of the defendants negligence in failing to maintain the premises in a safe condition by allowing an excessive amount of wax to remain on the floor creating a slipping hazard.  Defendants moved for summary judgment arguing that there was no breach of duty to Plaintiff and that defendants were not the cause of Plaintiff’s accident.  The Supreme Court agreed finding that Plaintiff’s assertion that the floor was very shiny and highly polished was insufficient to demonstrate that it constituted a dangerous condition; and that, absent proof that the defendants were negligent in applying wax or polish, liability could not be imposed.

In Nazario v. Knight Electric, on appeal to the New York Court of Appeals, partner Amy Fenno won reversal of Labor Law § 240 (1) liability when the Court decided the Appellate Division First Department had erroneously granted summary judgment to Plaintiff under Labor Law § 240 (1). The Court held there was a triable issue of fact as to whether the A-frame ladder on which Nazario was standing failed to provide adequate protection. Nazario had been performing electrical work from the A-frame ladder and fell after being electrocuted. The Court held there was a factual issue as to whether the ladder failed to provide proper protection under Labor Law § 240 (1), and whether additional safety devices were required. Blake v Neighborhood Hous. Servs. of N.Y. City, 1 N.Y.3d 280, 287 (2003); Barreto v Metropolitan Transp. Auth., 25 N.Y.3d 426 [2015], reargument denied 25 N.Y.3d 1211 (2015).

In Frishman v. 1211 McDonald, LLC, et al. (Kings County, Index No. 28068/11), Judge Richard Velasquez ultimately granted summary judgment in favor of our client. Plaintiff claims she tripped and fell as a result of a cracked sidewalk in front of our client’s store and sued the building owner and our client.

We previously moved for summary judgment on the grounds that our client, the ground floor commercial tenant, could not be held liable because:

(1) The "sidewalk law,"Administrative Code § 7-210, was inapplicable since our client was the tenant, not the owner.

(2) There was no common law cause of action since our client did not create the condition; negligently repair the sidewalk; or derive a special use from the sidewalk.

(3) The lease provision making our client responsible for sidewalk repairs did not create a duty to the plaintiff, as per Espinal v. Melville Snow Contrs.

(4) The leasehold contractual indemnity provision was unenforceable as it violated G.O.L. § 5-321's prohibition against a tenant indemnifying a landlord for the landlord’s negligence and this case did not fall under the Great Northern exception to G.O.L. § 5-321 since the parties to the lease were not sophisticated individuals who, through an arms-length transaction, agreed to provide contractual indemnity and allocated the risk through the use of insurance.

(5) Our client did not breach its duty to procure insurance in favor of the landlord.

The court previously denied the motion, finding that there was an "issue of fact whether the tenant’s lease required maintenance of sidewalk." Therefore, we moved to reargue and explained that the plain wording of the lease states that the tenant was obligated to "take good care [of the premises and sidewalk and] make all non-structural repairs [emphasis added] thereto as and when needed to preserve them in good working order and condition..." Thus, the tenant’s duties as to the sidewalk were limited to routine cleaning and not the physical repair of the sidewalk flags, as supported by the relevant case law. After hearing argument, Justice Velasquez reversed the previous decision and issued an order granting summary judgment and dismissal of all claims against our client.

In Rubino v. 330 Madison Company, LLC et al. (New York County Index No. 110134/2011), Judge Cynthia S. Kern granted summary judgment in favor of our client, Michael Mazzeo Electric Corp. (“Mazzeo”), an electrician shop that installed wiring as part of a major renovation of a Manhattan building. Plaintiff alleged first degree burns to his head and right arm; a traumatic brain injury, with resultant cognitive deficits and emotional and psychological trauma; a herniated cervical disc, requiring a one-level discectomy and fusion; and inability to return to work, as a result of suffering an electric shock from a live wire hanging from a demolished ceiling. 

Mazzeo contracted with general contractor, Tishman Construction Corporation, to run electrical wires throughout the building to power future window washing equipment on various roof setbacks. Mazzeo performed this work nearly two years before plaintiff’s accident took place. It was alleged that Mazzeo left a particular wire unprotected and concealed within the drop ceiling of the 18th floor of the building. This wire was connected to an electrical panel on the 16th floor of the building. Several weeks before plaintiff’s accident, Waldorf Demolition (“Waldorf’s), demolished the entire 18th floor, exposing the wire. The record established that despite the owner, managing agent, and general contractor having knowledge that this particular wire was powered by a panel on a different floor, they never informed their electrical shut off contractor to de-energize the 16th floor panel prior to the demolition. Plaintiff later came into contact with the wire while putting on a safety harness. 

Although it was undisputed that Mazzeo installed the subject wire that shocked the plaintiff, our firm prevailed on summary judgment dismissal of plaintiff’s negligence, and Labor Law Sections 200, 240(1) and 241(6) claims; the owner’s and general contractor’s third-party claims over for contractual indemnification and contribution; and Waldorf’s cross claims for negligence. We established by expert affidavit and deposition testimony that Mazzeo had, in fact, safed off the subject wire, and that the subsequent demolition of the 18th floor destroyed whatever protection was placed on the end of the wire. Although the parties attempted to argue that Mazzeo failed to safe off the wire at all, or at the very least, failed to adequately do so, Mazzeo countered that there was no evidence presented establishing these facts. The claims against Mazzeo were based purely on speculation and conjecture.   

Judge Kern agreed and granted Mazzeo’s motion. Plaintiff and his wife, being represented by Sacks & Sacks L.L.P., had previously made a $10,000,000 settlement demand.

 

In Watts-Gilead v. Hercules Chemical Co., et al. (Bronx County Index No. 350663/08), Judge Julia Rodriguez granted summary judgment in June 2016 in favor of our client Hercules Chemical Co., a manufacturer of a sulfuric drain opener named Clobber. The infant Plaintiff allegedly sustained severe chemical burns when the chemical product came into contact with her skin. It was alleged that the drain opener came into the possession of the infant plaintiff’s mother through the landlord of her building. The infant plaintiff’s mother left the bottle of Clobber on a shelf in her bathroom. Within moments of doing so, the infant plaintiff somehow spilled the contents of the bottle onto her face and upper body suffering chemical burns.

Hercules had a distribution agreement with co-defendant distributor Oatey Supply Chain Services, Inc. Oatey, in turn, had an exclusive distribution agreement with co-defendant distributor Durst Corporation. Durst sold the product to Canje Discount (a local Bronx hardware and variety store). Plaintiffs’ landlord, co-defendant Michael Smith, purchased the Clobber from Canje Discount.

As part of its safety policy, Hercules included a Seller’s Notice within all shipments of Clobber. It also included clear and conspicuous warnings on each bottle of Clobber and even went as far as to require distributor Durst to sign an agreement acknowledging that it understood the dangerous nature of Clobber and that Clobber’s intended users were solely "professionals".

The only party that asserted a claim against Hercules was Durst. Judge Rodriguez concluded that summary judgment was warranted in favor of Hercules as there was no allegation that the Clobber was inadequately or negligently designed, manufactured, packaged or labeled, and Durst’s own judicial admissions as well as Durst’s own expert supported the conclusion that the Clobber was not defective and that its distribution and sale was proper and exceeded industry standards.

In a high exposure press case involving the fatal shooting of an off duty NYC police officer, Partner Amy Fenno successfully argued before the Appellate Division First Department who reversed the lower court decision in the matter of Salichs v City of New York, and granted summary judgment to O’Connor Redd’s client Westec Interactive Security.

The case arose out of an early morning altercation in the parking lot of a White Castle restaurant where Westec Interactive Security provided remote video camera surveillance. Before the shooting, off duty police officer Hernandez was across the street at the Jet Set Café. Once inside the White Castle, a fight ensued between Hernandez and several other patrons. In that fight, a legally intoxicated Hernandez sustained an orbital fracture and other injuries.. In the aftermath of the fight, a dazed Hernandez exited the White Castle with his duty revolver, mistook a young man in the parking lot as one of his assailants and aimed his loaded service revolver at his head. When the NYPD arrived at the scene, they ordered Hernandez to drop his weapon and, when he failed to do so, fatally shot him.

The Court was persuaded by Ms.Fenno’s arguments, and reversed the lower court decision, finding that Hernandez's death was not a foreseeable result of a lapse in Westec’s security services. Further, the Court found it was speculative to assume that additional security measures could have prevented decedent's subsequent actions in the parking lot, or the police shooting thereafter. Since the subsequent independent acts of Hernandez and the police were extraordinary and not foreseeable or preventable in the normal course of events, the Court held that Westec’s purported security failures were not a proximate cause of decedent's injuries. The Court also found that the complaint should have been dismissed against Westec because Hernandez was not an intended third-party beneficiary of the contract for security services between White Castle and Westec.

In Keita (Supreme Court, Bronx County, Index # 305454/2009), the plaintiff was a security guard employed at a multi-level parking garage facility in Bronx, NY. The parking garage was owned, managed and maintained by the defendants. Plaintiff was working a 4pm – 12am shift on the date of loss (January 5, 2009). She allegedly slipped and fell on an icy stairwell at approx. 10pm at the roof level as she descending from the roof to the lower level. Plaintiff claimed that melting snow from the roof dripped down onto the stairs and formed the icy condition on which she purportedly fell. Mr. Orlando’s motion for summary judgment was denied based on the lower court’s finding of questions of fact as to whether defendants created the condition through their snow removal efforts at the roof level and whether defendants had notice of the condition. On appeal to the First Department, the lower court’s decision was unanimously reversed. The Appellate Division concluded that there were no triable issues as the certified climatological data for the day of the accident and the day prior reflected the absence of any precipitation but for a trace of snow approx. 20 hours prior to the incident. More importantly, the climatological data evidenced that any melting snow could not have frozen and formed the alleged icy condition as the temperature remained at 40 degrees during the 18 hours preceding the alleged accident. Lastly, the First Department cited to its recent decision in Roman v. Met-Paca II Assoc., LP, 85 AD3d 509 (2011) in concluding that defendants could not be charged with notice of the condition as plaintiff had gone up and down that staircase between 5 and 10 times during the few hours preceding her accident without noticing any snow or ice condition on said staircase. Nor did she observe the ice condition immediately before falling. The First Department reversed the lower court’s holding and granted summary judgment dismissal of plaintiff’s negligence claims against the defendants.

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In the case of Joseph Mobley, et al. v. J. Foster Phillips Funeral Home, (Queens County Supreme Court, Index # 27220/2011, Judge Howard Lane), the five plaintiffs were passengers in the client’s limousine which was on its way to a funeral when it was involved in a motor vehicle accident. Liability was deemed to be a question of fact due to conflicting stories between the drivers. At the close of discovery, Mr. Orlando submitted a summary judgment motion to dismiss the claims of all five plaintiffs for failing to meet NY’s “Serious Injury” threshold under Insurance Law §5102(d). Two of the plaintiffs were minor children who only missed two weeks of school following the accident and had chiropractic treatment for 6-8 weeks. Those claims were dismissed as not meeting threshold. One of the adult plaintiffs, Joseph Mobley, underwent a cervical fusion one year post-accident and his attorney alleged this surgery was causally related. Fortunately, Mr. Orlando was able to uncover four prior accidents (3 motor vehicle and 1 work accident) within 10 years of the subject accident wherein Mr. Mobley had sustained injuries to his neck and back. Defendants’ experts opined that Mr. Mobley’s neck condition was the result of these prior accidents and pre-existed the subject accident. In opposition to the threshold motion, plaintiff’s counsel submitted an affirmed report of known neurologist Dr. Hausknecht who examined plaintiff on a single occasion 2.5 years after the subject accident and who opined that plaintiff’s neck condition was causally related. However, neither plaintiff nor plaintiff’s counsel ever informed Dr. Hausknecht of Mr. Mobley’s priors as Dr. Hausknecht noted twice in his report “there is no prior history of neck problems”. We then argued and the court agreed that Dr. Hausknecht’s opinion on causation was speculative and not competent as he had never been apprised of Mr. Mobley’s prior accidents and medical treatment for his neck. The judge concluded that plaintiff “failed to establish a causal connection between the accident and [Mr. Mobley’s] injuries” and dismissed Mr. Mobley’s claims. Additionally, the judge dismissed Mr. Mobley’s claim based on the 90/180 category of “serious injury” given Mr. Orlando’s submission of a record from one of Mr. Mobley’s treating physicians, dated one month post-accident, wherein the doctor opined that Mr. Mobley was capable of returning to work. Judge Lane also dismissed all of the claims of the two other adult plaintiffs for failing to meet the “serious injury” threshold except for their respective claims based on the 90/180 category.