Friday, October 29, 2010

Recent "Pain and Suffering" Awards

In Colon v. New York Eye Surgery Associates, P.C., the plaintiff was injured in a trip and fall over a "grassy verge" that constituted a dangerous condition. Plaintiff's expert testified that plaintiff had "some components" of Reflex Sympathetic Dystrophy that "more likely than not" were causally related to the accident. The First Department affirmed the trial judge's decision to allow this seemingly speculative testimony and further affirmed awards of $300,000 for past pain and suffering and $650,000 for future pain and suffering as reduced by the trial judge from $750,000 and $1,500,000, respectively.

In Diouf v. NYCTA, the 55-year-old plaintiff fell on subway stairs and fractured both wrists. The left wrist fracture was a comminuted intra-articular fracture of the distal radius and ulnar styloid, which required two surgical procedures -- (1) internal reduction and (2) removal of the metal hardware. The plaintiff was left with decreased ranges of motion, tenderness and reduced grip strength, as well as traumatic arthritis. The jury's award of $800,000 for future pain and suffering was affirmed on appeal.

Two "Easy" Labor Law Cases

Lightning struck twice recently in the First Department when the Court was given two relatively easy Labor Law questions to decide.

In Solano v. City of New York, the Court held that a plywood plank that was deliberately dropped from a window does not constitute a "falling object" within the meaning of Labor Law 240(1).

In Rajkumar v. Budd Contracting Corporation, the Court held that plaintiff's interior decorating work was not construction, demolition or excavation work within the meaning of Labor Law 241(6). Although this issue was raised for the first time on appeal, the Court exercised its discretion to reach the unpreserved issue as it could have been decided as a matter of law below.

Conditional, Partial Contractual Indemnification

In Hughey v. RHM-88, LLC, the landowner, One United Nations Plaza Condominium (UNPC) and managing agent, Cushman & Wakefield (CW) were both granted conditional orders of partial contractual indemnification. Despite the fact that questions existed as to whether UNPC had constructive notice of the alleged condition which caused the plaintiff's injuries, UNPC was awarded indemnity from CW to the extent that UNPC was not itself negligent and for amounts not otherwise covered by insurance. Both UNPC and CW were awarded indemnity from the cleaning contractor, Pritchard despite the fact that UNPC and/or CW could be found negligent. Since the Pritchard cleaning agreement contained the requisite savings language, "to the fullest extent permitted by law," the Court held that UNPC and/or CW could be indemnified from Pritchard "to the extent they are not responsible for the injured plaintiff's accident."

A Construction Claim Trifecta - Issues of Labor Law 240(1), Grave Injury and Contractual Indemnity

In Miranda v. Norstar Building Corp., the Third Department was confronted with a case involving a trifecta of typical issues involved in construction site accident litigation -- Labor Law 240(1), "grave injury" and contractual indemnification.

The plaintiff in Miranda was catastrophically injured in a 30-foot fall from a rooftop. The plaintiff was not provided with traditional safety devices, in that there were no harnesses, lanyards, tie-offs, etc. Plaintiff was provided, however, with a "safety monitor" -- a co-worker whose job it was to watch the employees as they performed their work and warn them when they were too close to the edge of the roof. In holding that a "safety monitor" is not a "safety device" within the meaning of Labor Law 240(1), the Third Department found that the statutory enumerated devices, such as a scaffold, provide "physical support" to protect workers from elevation related risks. By contrast, the "safety monitor" provided no such physical support. Therefore, the Court deemed it consistent with the legislative intent of 240(1) to hold that plaintiff was not provided with a safety device within the meaning of the Labor Law.

Notably, the Court rejected the defendants' argument that, because a "safety monitor" was acceptable under OSHA guidelines and the only appropriate fall protection under the circumstances, they had not violated Labor Law 240(1). In essence, the Court held that the OSHA guidelines in this respect were inconsistent with the Labor Law. Interestingly, however, the Court could have opted to find that a "safety monitor" was a sufficient "device" within the meaning of the Labor Law, but still found that the defendants had violated the Labor Law because the monitor in the present case failed to meet the OSHA requirements. OSHA required that the monitor "shall not have other responsibilities which could take the monitor's attention from the monitoring function." Here, the monitor testified that he thought that he could perform additional tasks while performing the monitoring function and he was cleaning a seam on the roof when the accident occurred. The fact that the Court took the "extra step," so to speak, gives the impression that this issue was ripe for decision. Which, of course, leads me to wonder whether the Court of Appeals will be getting this issue sometime soon?

The "grave inujry" aspect of this case pertained to whether plaintiff was "employable" despite his traumatic brain injury. Given conflicting expert affidavits on this issue, the Court found that a question of fact existed to deny summary judgment. The Court also found that the guardianship Order in place, plaintiff's eligibility for Social Security and the fact that he was deemed permanently and totally disabled by the Workers' Compensation Board was not determinative of this issue, holding that such determinations are not dispositive (see Way v. Grantling, 289 AD2d 790 [3rd Dept. 2001]).

On the contractual indemnity issue, the Court found that the parties' agreement was not violative of the General Obligations Law in that the proposed indemnitee, NBC, was not seeking to be indemnified for its own negligence. Citing to Brooks v. Judlau (11 NY3d 204 [2008]), the Court specifically noted that the provision at issue was a "partial indemnification agreement." The Court went on to find, however, that a question of fact existed as to whether NBC was negligent with respect to the happening of plaintiff's accident. As such, it was premature to hold that NBC was entitled to conditional contractual indemnification. I wonder if NBC had argued that it should be entitled to conditional, partial contractual indemnification?

Thursday, October 21, 2010

Court Of Appeals Renders Decisions On Labor Law And Proving Lost Earnings With Reasonable Certainty

In this Labor Law action, the Court of Appeals affirmed the dismissal of claims brought under §§ 240(1) & 241(6).  The plaintiff’s hand was crushed when it became wedged between part of an ascending “spider scaffold” and a leg of the Kosciuszko Bridge. The Court of Appeals held that the plaintiff could not recover under § 240(1) for injuries from the ascending scaffold pinning and crushing his hand because “the injury was not the direct consequence of the application of the force of gravity to an object or person.” The Court also held that the plaintiff failed to assert a satisfactory predicate rule or regulation to a claim under 241(6). The plaintiff had asserted a violation of 12 NYCRR 23-1.5 (c)(1), which requires that equipment be in “good repair and in safe working condition.”   According to the Court, this rule cannot serve as a predicate because it does not constitute a “specific, positive command” or said differently, the plaintiff’s proposed predicate rule did not “set forth a specific standard of conduct.”

This car accident case concerns the sufficiency of proof of loss of future wages.  The plaintiff attempted to support his claim for a reduction in wages due to his injury by introducing W-2 forms and tax returns.  The Appellate Division held 3-2 that plaintiff’s own testimony was “legally sufficient to support a claim” for loss of future wages.  The Court of Appeals reversed holding that "W-2 forms and tax returns that plaintiff introduced demonstrated his yearly income post accident but they were not probative of a reduction in future wages as a result of the accident because they did not compare his pre and post accident income nor compare his post accident income with the income of similarly situated employees in plaintiff's company." According to dissenters at the Appellate Division, the plaintiff did give oral testimony concerning other employees and their rate of pay at the plaintiff’s company, but provided no documentation to support that claim.

Wednesday, October 20, 2010

Some Interesting Negligence Issues All Rolled Up Into One Case

The case of Petty v. Dumont, contains a discussion of a few uncommon issues involving negligence. (1) The First Department reiterated the well-established rule that an innocent passenger is entitled to summary judgment despite issues of comparative negligence between defendants. (2) A known roadway hazard is a concurrent cause of an accident that is not superseded by driver negligence (citing Humphrey v. State of New York, 60 NY2d 742 [1983]). (3) By making "special use" of the roadway after the City had erected barriers in front of its facility after 9-11, Con Edison could be held liable to the plaintiff. More specifically, because Con Ed (a) controlled the barriers, (b) made use of the lane created by the barriers as an entrace to its facility and (c) benefitted from the security that the barriers provided, the Court applied the "special use" exception to the general principle that an abutting landowner is not obligated to maintain a public roadway.

Separate Phases of Work, Distinct From Construction, Are Not Protected By The Labor Law

In Barnes v. City of New York, the First Department held that "plaintiff's work, which consisted of disconnecting power cables from the third rail to allow a signal construction project to proceed safely, was a separate phase of work, distinct from any construction and thus, not a covered activity under Labor Law 241(6)."

Beware The Dredded "Sports Liability Consultant"

In Lizardo v. Board of Education of the City of New York, the plaintiff was injured in a "rundown" during a kickball game. For those of you who are not familiar with the term, a "rundown" is when the runner is caught between two bases and either of the opposing team's players who are guarding those bases can tag the runner out. Not one to give up easily, apparently the student caught in the rundown decided to "take out" the player with the ball by crashing into him and knocking him down. Of course, the player with the ball was injured and sued the School.

In affirming summary judgment to the School, the First Department questioned whether plaintiff's "Sports Liability Consultant" could be treated as an objective expert. Irrespective of how the "expert" should be treated, however, the Court found that his opinion that the children should have been reminded of the rules of kickball, or that the children should have been more closely supervised were unacceptable. I'm sure the Court did not intend to be funny when it observed that "[u]nlike formal league play, elementary school gym classes need not comport exactly with the games' formal rules," or that the teacher had no reason "to think that the students needed to be reminded that the game of kickball, which they had been playing for years, does not include full contact or tackling." Nevertheless, one cannot help but chuckle at the thought of a kickball league containing such veteran elementary school players.

Reminder That A Party Cannot Contractually Exonerate Itself For Its Own Gross Negligence

In Abacus Federal Savings v. ADT Security Services, the First Department observed that provisions in contracts that exonerate a party from its own negligence are generally enforceable. At least one exception exists, however, in that, as a matter of public policy a party may not be exonerated from liability caused by its own grossly negligent conduct. Gross negligence in the sense of contractual limitation of liability must "smack of intentional wrongdoing." BUT, a waiver of subrogation provision does constitute a defense to all claims, including claims of gross negligence.

Tuesday, October 19, 2010

This Week At The Court Of Appeals

Busy week, and have not had the time to do a full write-up on the cases being argued this week at the Court of Appeals.  The full list is here.  We are particularly watching Orphan v. Pilnik, which is a medical malpractice case involving the level of proof needed to establish a claim for lack of informed consent. 

Also today's decisions from the Court of Appeals are here

Tuesday, October 12, 2010

This Week At The Court Of Appeals

Here is the complete list of the cases being argued in the Court of Appeals this week and a brief summary of the civil cases we are watching:

Tuesday, October 12, 2010

Kramer v. Phoneix Life Insurance Company: the Second Circuit certified the following question to the Court of Appeals: "Does New York Insurance Law Secs. 3205(b)(1) or (b)(2) prohibit an insured from procuring a policy on his own life and immediately transferring the policy to a person without an insurable interest in the insured's life, if the insured did not ever intend to provide insurance protection for a person with an insurable interest in the insured's life?"

Aquino v. Higgins: parents allowed their daughter to have a party at their house after a high school dance.  They later discovered that some of the kids brought in alcohol.  They put their son to bed and asked the other guests if they needed rides home, but they all declined.  The parents testified at depositions that none of the children appeared intoxicated.  They also testified that they were unaware their son later tried to drive Aquino and another guest home.  Their son lost control of the car crashing into a tree injuring Aquino.  At issue is whether the parents satisfied their duty to provide adequate supervision.  

Nostrom v. A.W. Chesterton Company: the plaintiff claimed that her husband was exposed to asbestos in airborne dust and his use of asbestos-containing products while working at power plants. The plaintiff claimed that the defendants were vicariously liable under Labor Law Sec. 241(6) based on the alleged violation of Industrial Code Secs. 12-1.4(b)(3) and (4) and Sec. 12-1.6(a), which relate to airborne contaminants.  The First Department declined to follow the Second and Fourth Departments, which permitted liability pursuant to Labor Law Sec. 241(6) under those Industrial Code regulations.  The First Department held that these regulations did not specifically relate to construction, demolition or excavation, were not sufficiently specific to support a Labor Law claim and asbestos fibers are not the type of airborne contaminants envisioned by the regulations.     

Wednesday, October 13, 2010

Giordano v. Market America, Inc.: this federal case claiming personal injuries and wrongful death from the dietary supplement ephedra, raises the following questions: 

"(1) Are the provisions of [section] 214-c(4) providing for an extension of the statute of limitations in certain circumstances limited to actions for injuries caused by the latent effects of exposure to a substance?

"(2) Can an injury that occurs within 24 to 48 hours of exposure to a substance be considered 'latent' for these purposes? 

"(3) What standards should be applied to determine whether a genuine issue of material fact exists for resolution by a trier of fact as to whether 'technical, scientific or medical knowledge and information sufficient to ascertain the cause of [the plaintiff's] injury' was 'discovered, identified or determined' for [section] 214-c(4) purposes?" 

Monday, October 11, 2010

Practice Reminders

1. Frenchman v. Westchester Medical Center provides an important practice reminder that the failure to raise an inconsistency prior to the jury being discharged renders the issue unpreserved for appellate review.  In Frenchman, the Second Department also affirmed awards of $1,000,000 for past pain and suffering, $150,000 for past loss of services, $450,000 for past wrongful death damages, and $110,000 for future wrongful death damages in a medical malpractice case.

2. McConnell v. Santana highlights the absolute necessity that a party move for a judgment as a matter of law at the close of evidence to preserve a challenge to the sufficiency of the evidence on appeal.  The Second Depatment held, "[t]he defendants failed to preserve for appellate review their argument that they are entitled to judgment as a matter of law on the issue of negligence on the ground that the plaintiff failed to establish proximate cause. By failing to move pursuant to CPLR 4401 for judgment as a matter of law on the issue of negligence at the close of the evidence, the defendants implicitly conceded that the issue was for the trier of fact. Accordingly, the matter must be remitted to the Supreme Court, Richmond County, for a new trial solely on the issues of whether the plaintiff's decedent was at fault in the happening of the accident and whether such fault was a proximate cause of the accident."

3.  In Santana v. Vargas, the Second Department held that marking a case as "settled" is not the equivalent of having the case "marked off" or stricken from the calendar.  CPLR 3404, therefore, did not apply where the plaintiff sought to restore the action.  

Saturday, October 9, 2010

"Exterior And Structural Elements" Includes Parking Lot

In Eccleston Hall v. Plaza, the owner of the parking lot where the plaintiff was injured, Euclid, sought contractual indemnification against the City pursuant to its lease with the City.  "The subject lease provided that Euclid was responsible for "all repairs . . . to the exterior and structural elements of the Demised Premises, including any required maintenance, repairs and replacement to the windows, structural plumbing, sidewalks (repairs only), roof, electrical, elevator, heating, ventilation and air-conditioning systems if necessary." The Second Department held that this provision "clearly and unambiguously included the parking lot, thus placing the obligation to repair the parking lot on Euclid." The Second Department, therefore, held that the Supreme Court properly denied Euclid's indemnification claim.  

Friday, October 8, 2010

Snyder v. Phelps

For Constitutional Law buffs, on Wednesday, the United States Supreme Court heard arguments in the case of Snyder v. Phelps. This is the case where the father of a deceased solider sued members of the Westboro Baptist Church for the emotional harm they caused by protesting at his son's funeral.  It is hard to think of a case in recent history that more directly tests the limits of free speech and the extent to which emotion can drive judicial decision-making.  For those interested, SCOTUSblog has a recap of the argument as well as transcripts of the arguments.     

Wednesday, October 6, 2010

Additional Insured -- Builder's Risk

In St. Paul v. FD Sprinkler, Inc., St. Paul commenced a subrogation action to recover from subcontractors, FD Sprinkler and Woodworks Construction, monies that St. Paul had paid for property damage claimed under a Builder's Risk policy issued to its insured, Chelsea 27th Street Apartments. The damage was allegedly caused to its insured's building by the subcontractors. The subcontractors argued in defense to the action that they too were insured under the St. Paul policy, and therefore the antisubrogation doctrine barred the action. The First Department found that the subcontractors were only insured under the St. Paul policy "as their interests may appear." This, the Court also found, was limited to tools, labor or material owned or furnished by the subcontractors. Of the over $700,000 in claimed damages paid by St. Paul, only $52,323 were attributable to Woodworkers' materials. Therefore, the Court held that $52,323 was the only amount to which the antisubrogation doctrine applied.

First Department Reaffirms Prior Holding That E-mails May Satisfy the Statute of Frauds

In Naldi v. Grunberg, the First Department reaffirmed its prior holdings that an e-mail will satisfy the statute of frauds so long as its contents and subscription meet all of the requirements of the governing statute. At issue in Naldi was plaintiff's claim to an alleged right of first refusal for the purchase of real property that was memorialized in an e-mail only. Although the particular e-mail at issue did not meet the statute of frauds' requirements, the Court engaged in a lengthy analysis to explain that an e-mail may nevertheless be used to satisfy the statute, noting that "e-mail is no longer a novelty" and that it is "omnipresent in both business and personal affairs."

The Court began its analysis with a summary of the Electronic Signatures in Global and National Commerce Act (E-SIGN). Congress enacted E-SIGN to govern transactions affecting interstate or foreign commerce in which an electronic signature or contract was used. According to E-SIGN, such contracts could not be denied legal effect or validity solely on the basis that an electronic signature or record was used in its formation.

After E-SIGN was enacted, the New York Legislature amended the Electronic Signatures and Records Act (ESRA). As part of ESRA's "Legislative intent" it was noted that the bill was intended to "complement" E-SIGN and permit the use of electronic signatures and records in the context of commercial transactions. As such, the First Department found that the Legislature had incorporated the substantive terms of E-SIGN into New York state law.

The Court concluded, therefore, that "E-SIGN's requirement that an electronically memorialized and subscribed contract be given the same legal effect as a contract memorialized and subscribed on paper is part of New York law," and thus an e-mail may satisfy the statute of frauds.

Tuesday, October 5, 2010

Court Of Appeals Watch

Leave to appeal to the Court of Appeals has been granted in the following cases:

In Lifson v. City of Syracusethe plaintiff's wife died as a result of injuries suffered when she was hit by a vehicle at 4:00 p.m. on a Tuesday evening in late February. The driver of the car was found not liable and the City of Syracuse was found 15% liable, with the remaining liability on the decedent. The basis of the decedent’s liability was failure to yield the right of way at an unmarked cross walk, and the Fourth Department concluded that evidence at trial supported a finding that the decedent was outside the unmarked walkway.  

With regard to the driver of the car, the Court held that sun glare does not provide a defense to negligence as a matter of law.  The Court, however, found that the the trial court properly gave an “emergency” instruction because the driver testified he was blinded by sun glare immediately before hitting the plaintiff.  One justice dissented, arguing that sun glare was not “unforeseen,” but should be “anticipated as a routine occurrence at certain times of the day and in particular weather conditions.”

As to the City, a prior appeal concluded that the City had an ongoing duty to review its traffic plan as a result of a letter the City received seven years before the accident. The letter requested a traffic signal based on the danger to pedestrians at the relevant intersection.  On this appeal, the Court held that the trial court properly admitted evidence of its traffic plan.  The Court also held that the verdict was not inconsistent in its finding of no liability as to the driver but 15% liability as to the City.  


In Cragg v. Allstate Indemnity, a young girl drowned in a pool at her grandparents’ house where she had lived with her mother. Her father, who was not an insured and did not live at the house, brought a wrongful death suit as administrator and sole distributee of his daughter’s estate.  The primary issue in this declaratory judgment action was whether the grandparents’ insurance policy with Allstate excludes coverage of the plaintiff’s claim.

The Fourth Department held "[t]here is no coverage for the simple reason that a homeowners' insurance policy is essentially designed to indemnify the policy holders against liability for injuries sustained by noninsureds. Here, neither decedent nor her mother would be entitled to indemnification from Allstate for the injuries and death of decedent.  The Court further noted that to require Allstate Indemnity to pay "would result in the receipt by the mother, an insured of the benefits of the policy in the form of the satisfaction of the money judgment." 


In Bordeleau v. State of New York, the plaintiffs challenged appropriations of state funds to an agency and two public benefit corporations where the funds were to be distributed to private entities to “foster[] economic development.” The complaint is based on the New York Constitution’s prohibition on “the giving or loaning of state money to any private entity” and State Finance Law. The Third Department reversed, permitting the plaintiffs to proceed on this cause of action against the defendants, IBM, Advanced Micro Devices Inc., the State of New York, and West Genesee Hotel Associates.

The plaintiff also challenged legislative appropriations that “will be spent according to some future agreement between the Governor, Speaker of the Assembly and Majority Leader of the Senate.” The plaintiffs complain that this violates the New York Constitution’s limitations that appropriations “shall distinctly specify the sum appropriated, and the object or purpose to which it is to be applied.” The Third Department looked to Saxton v. Carey, 44 N.Y.2d 545 (1978), which held that “the degree of itemization and the extent of transfer allowable are matters which are to be determined by the Governor and the Legislature, not by judicial fiat.” In following Saxton, the Court affirmed dismissal of plaintiffs’ claims because they are non-justiciable.


At issue in Greenberg, Trager & Herbst, LLC v. HSBC Bank, is whether HSBC Bank is liable to the plaintiff law firm when a check the firm deposited was later revealed to be counterfeit. The trial court dismissed the matter and the First Department affirmed. The plaintiff claimed that as a result of HSBC's misrepresentation that the check cleared, it wired the money to an offshore account, causing it to suffer damages when it could not recover the money.  

Plaintiff alternatively argued that HSBC should be allocated the loss equitably as a matter of estoppel. The First Department disagreed, finding that the plaintiff was in the best position to avoid the loss and that it failed to do research into its client, its debtor, and the recipient of the wire transfer. 


In Town of Hempstead v. East Coast Resource Group, the Town of Hempstead seeks damages for the alleged breach of an insurance procurement provision.  At issue is whether the underlying accident arose out of the activities contemplated by the agreement.  The description of the case and issues involved have been limited here because this is an MGL case.      


Sunday, October 3, 2010

Court Of Appeals Invites Amicus Participation

The Court of Appeals has invited amicus participation in Matter of Afton C. (James C.) (73 A.D.3d 887 [2nd Dept. 2010]). Matter of Afton C. involves five related Family Court Article 10 proceedings. The petition alleged that the father was a "untreated level three sex offender," who after his release, had returned to the family home and that the mother, by allowing the father to return to the home, impaired their children's physical, mental, or emotional well-being or placed them in imminent danger of such impairment. The Appellate Division reversed the family court's order holding that the mere fact that a sex offender was allowed to return to the home was sufficient. The Appellate Division, therefore, denied the petitions and dismissed the proceedings. The issue in the Court of Appeals is whether the Appellate Division erred in dismissing the petitions.