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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.

In The Martin Group v. Pennsylvania National Ins. Co. (Westchester County Supreme Court, Index No. 50007/2014), our client was the general contractor for the jobsite who hired Penn National’s named insured, Industrial Maintenance, to perform painting services.  Industrial, in turn, hired the injured plaintiff’s employer, DLDC General Contracting.  The injured plaintiff fell 20 feet through an unsecured opening in the floor of the jobsite.  The DJA was commenced for pursuit of additional insured coverage on a primary basis under the Penn National policy.   Judge Charles Wood agreed with our argument that NY law applied to the Penn National policy and the issue of additional insured coverage despite Penn National’s argument that New Jersey law should apply since Penn National’s named insured was a NJ resident.  The judge also agreed with us that The Martin Group qualified as an additional insured under the Penn National policy, that the Penn National policy affords primary coverage to The Martin Group and that Penn National owes a defense to The Martin Group. Despite our contention that the Harleysville policy issued to The Martin Group is excess to the Penn National policy, Judge Wood found that the Harleysville policy affords primary coverage to The Martin Group.  He therefore concluded that Penn National owes Harleysville reimbursement of 50% of its defense costs in the underlying action.  As for indemnification owed to The Martin Group by Penn National, Judge Wood deferred the issue until a factual determination is made in the underlying action as to whether the injured plaintiff’s accident was caused by an ‘act or omission’ of Penn National’s named insured or anyone acting on their behalf.  This portion of the decision contravenes recent First Department case law and an appeal will be filed to the Second Department for resolution.      

Joe Orlando obtains a defense verdict in Nassau County.  Duran v. TG Nickel, et al. Directed Verdict in favor of Client. Nassau County. The trial judge granted our motion for a directed verdict at the close of evidence on liability finding that the work which the injured plaintiff was performing at the time of his alleged accident was outside the scope of our client’s construction management agreement with the property owner.  Any additional work that arose during the course of job could only be authorized to our client via a written Change Order executed by the Owner.  Owner failed to produce evidence of any such written Change Order for the subject work.

In the case of Doxey v. Ultimate Power, et al. (Nassau County Supreme Court Index No. 1432/2010), the defendant Freeport Union Free School District was performing some upgrades to several of its schools. One of those upgrades was the installation of a new boiler. Freeport hired defendant Triton Construction as the construction manager over the project and hired our client, Ultimate Power, as the prime HVAC contractor. Ultimate Power, in turn, hired the injured plaintiff's employer, Striper Mechanical, to install the new boiler. On the date of the accident, the plaintiff and his co-workers were bringing supplies into the basement area where the boiler was located through a sidewalk hatchway door, commonly referred to as a "Bilco" door. The bi-parting metal Bilco doors were opened from below via a pair of handles which held the doors open. The Bilco doors had originally been equipped with 4 "struts" or "spring assists". These struts consisted of a metal spring encapsulated within an upper and lower metal casing. When the door closed, the encased spring would compress which would prevent the metal door from slamming shut as it would allow the door to close in a controlled manner. When the doors were opened, the encased spring would decompress and take the weight of the steel door in order to assist a person attempting to open the door. The plaintiff observed one of these struts to be slightly protruding into the Bilco door opening. The strut was non-functional as it had become detached from the door at its upper casing but was still attached to the door frame at the bottom of its lower casing. He moved the strut into a standing position to be out of the way and, as he did so, the concealed metal spring within the strut suddenly and unexpectedly decompressed and sprung striking plaintiff on the side of his face.

Plaintiff brought suit against the defendants claiming negligence, res ipsa loquitor and violations of Labor Law §§200 and 241(6). The lower court granted summary judgment in favor of all defendants dismissing plaintiff's Complaint and finding that none of the defendants created the condition or had notice of the alleged latent defect in the spring. As for plaintiff's Labor Law §241(6) claim, the lower court held that none of plaintiff's cited Industrial Code sections were applicable. As for the res ipsa loquitor claim, the lower court dismissed same as there was no evidence that any one defendant had 'exclusive control' over the spring mechanism. The plaintiff appealed to the Second Department.

The Second Department unanimously upheld the grant of summary judgment on all counts. On the notice issue, plaintiff argued that the defendants had notice of the dangerous condition posed by the inoperable strut based upon the fact that the Bilco hatch doors were rusted which was acknowledged by Triton's project superintendent and Ultimate Power's field supervisor. The Second Department agreed with our argument that the presence of rust on the doors themselves does not impute notice of the danger posed by the hidden spring encased within a tube which was latent and would not have been discoverable upon reasonable inspection. The Court latched onto our cited case of Rapino v. City of NY, 299 AD2d 470 (2nd Dept. 2002) lv denied 100 NY2d 506 (2003) as a basis for its finding that defendants lacked constructive notice of the latent defect in the spring mechanism.

In Vasquez v. Psani Realty, LLC (Nassau County Index No. 13165/2011), the injured plaintiff was employed as a cable repair technician with Time Warner Cable. The defendant property owner owned a multi-story apartment building in Sunnyside, Queens. On February 22, 2011, the plaintiff was attempting to repair a junction box affixed to the back of the property owner's apartment building when he fell approximately 4 feet from a sectional ladder landing on a concrete patio. The 40-year-old plaintiff suffered a comminuted fracture of the dominant wrist, requiring open reduction, internal fixation of same. The plaintiff underwent a subsequent arthroscopic surgery, involving the insertion of several pins and k-wire. Mr. Cianflone successfully established that the property owner had no actual or constructive notice of a dangerous condition, contributing to the plaintiff's accident, dispensing with the plaintiff's negligence and Labor Law Section 200 claims against the property owner. Citing to the Court of Appeals recent holding in Abbatiello v. Lancaster Studio Associates, Mr. Cianflone also established that the plaintiff, working in his capacity as a cable repair technician, was not entitled to the protections afforded under New York State Labor Law Sections 240(1) and 241(6) because he was not requested by the defendant building owner to perform the subject work, the defendant had no knowledge that the plaintiff was even performing said work and that the plaintiff was on the property solely by virtue of the Public Service Law, without which the plaintiff would have been a trespasser on the property owner's land. Nor was the type of work the plaintiff was engaged in – maintenance of a malfunctioning cable box – covered by the Labor Law. Therefore, the court dismissed the plaintiff's Complaint in its entirety as against the defendant property owner.

In Minchala v. Les Design (Queens County Index No. 23645/2010), the injured plaintiff was employed by Les Design Corp. as a sign/awning installer. On July 3, 2010, he was assisting with the installation of a new awning at defendants/third-party plaintiffs' premises when he fell 10′ onto a concrete sidewalk, sustaining right zygomatic fracture, right basal fracture, right iliac crest fracture, rib fracture, T1 transverse process fracture, right superior acromioclavicular dislocation and head trauma including right temporal epidural hematoma and left frontoparietal subarachnoid hemorrhage. Mr. Orlando and Mr. Cianflone established that plaintiff had recovered from his head trauma and did not exhibit any objective residuals from same. This was demonstrated through expert medical evidence, evidence from a vocational expert as well as plaintiff's own testimony. Defendants/third-party plaintiffs failed to adequately refute this evidence through any admissible medical proof. As such, the court granted the motion finding that plaintiff did not suffer a 'grave injury' within the meaning of Workers' Compensation Law Section 11 as plaintiff was not rendered unemployable in any capacity as a result of his head trauma. Further, the court also dismissed the contractual claims as the purchase order for the subject work did not contain any indemnification or insurance procurement language.