Full Service Law Firm in Mt. Laurel Township, NJ | Capehart Scatchard

New York Law

View OTHER BLOGS

Supreme Court of New York Dismisses Suit on Grounds of Lack of Notice and Absence of Proximate Cause

The Supreme Court of New York recently reviewed substantive grounds for summary judgment, such as lack of notice, absence of proximate cause, and improper party inclusion in its opinion and holding in the matter of Kimberly Squire v. City of New York, et al.  In Kimberly Squire, Plaintiff’s Complaint alleged injuries from a trip and fall due to Plaintiff stepping into a hole when she was disembarking a NYC MTA bus in Brooklyn, New York.  Plaintiff filed suit against the City of New York; New York City Transit Authority; and Metropolitan Transportation Authority.

Defendants New York City Transit Authority and Metropolitan Transportation Authority (together, “Transit Defendants”) filed a motion for summary judgment.  These Transit Defendants advanced multiple arguments to support their motion, including that defect identified by Plaintiff (the hole) was not the proximate cause of the accident, that same was not visible from the bus operator’s vantage point, and that Transit Defendants do not own, operate, or maintain the property where Plaintiff fell.  In addition, the Metropolitan Transportation Authority (“MTA”) claimed that it was not a proper party to the suit.  Later, the City of New York filed its own motion for summary judgment and argued lack of notice of the hole and that the City of New York did not create the alleged defect.

In assessing these arguments, the Court agreed that the MTA was not a proper party to the lawsuit and dismissed Plaintiff’s claims against MTA accordingly.  The Court also found that the New York City Transit Authority oversaw the subject bus and cited precedent holding that the MTA and its subsidiaries must be sued separately and were not responsible for each other’s torts.

As to New York City Transit Authority’s arguments about proximate cause – the Court noted that Transit Defendants were generally not responsible for maintaining bus stops, roadways, curbs, or sidewalks.  Further, the Court noted that a common carrier owed a duty to an alighting passenger to stop where they can disembark safely.  Assessing whether a duty to a plaintiff was breached when the driver stopped requires an analysis of whether the bus driver could have observed the dangerous condition from the driver’s vantage point.

The Court found that evidence in the record includes video and photo evidence which showed that Plaintiff was too far from the alleged hole for it to have caused her fall as she disembarked the bus.  Thus, Transit Defendants’ motion for summary judgment was granted, as evidence showed that the hole was not the proximate cause of Plaintiff’s accident.

Finally, the Court addressed the City of New York’s argument that it lacked notice of the alleged hole.  The Court found that although Plaintiff presented evidence of two permits and inspections for nearby locations, she failed to raise a triable issue of fact because the evidence presented did not relate to the specific defect.  On the contrary, the Court held that the City of New York had adequately demonstrated that it did not have prior written notice of the defect.  Accordingly, the Court found that City of New York has articulated a prima facie case that it lacked written notice and, thus, was entitled to summary judgment.  With this, Plaintiff’s claims against all Defendants were dismissed.

New York practitioners are encouraged to review this opinion as a refresher of New York’s standards on summary judgment.  Same opinion is also instructive as to standards of alleging breaches of common carriers’ duties (to an alighting passenger to stop at a place where the passenger may safely disembark and leave the area).

Supreme Court of New York Found Property Owner Vicariously Liable by Way of Public Highway Exception for Dangerous Conditions Caused by Third Party Contractor

Co-authored by: Uyen Nguyen, Law Clerk and Alyson L. Knipe, Esq.

In Malka Markowitz v. 420 Kent Ave. LLC, 2024 N.Y. Misc. LEXIS 8327, the Supreme Court of the State of New York, Kings County (“NY Supreme Court”) denied the property owner Defendant’s Motion to Reargue their prior arguments made in their Motion for Summary Judgment.

In the underlying facts, Plaintiff Malka Markowitz brought a personal injury action against Defendants 420 Kent Avenue, LLC., First Service Residential, Inc. (together “420 Kent”) and U.S. Rent-A-Fence (“US Fence”), alleging she sustained injuries on July 5, 2021, from tripping on the square base of a fence on 420 Kent’s property.

In June 2021, Defendants 420 Kent (property owners) contracted US Fence to rent a six-foot chain-link fence to protect against individuals expected to gather near 420 Kent’s property to watch the July 4, 2021 Independence Day fireworks.  US Fence agreed to install the fence on July 2 and remove it by July 5, 2021.  On July 5, 2021, while US Fence was in the process of removing the fence, Plaintiff Markowitz walked into the park adjacent to 420 Kent’s property. She then tripped on a square base of the fence and was injured as a result.

420 Kent and US Fence both moved for Summary Judgment on competing theories of indemnification. The NY Supreme Court denied both Motions for Summary Judgment as to indemnification; however, the Court did grant a branch of US Fence’s Motion on its claim for common-law indemnification, arguing that 420 Kent is liable because they failed to name US Fence as an additional insured on their policy per their agreement.

In a motion to reargue pursuant to C.P.L.R. § 2221(d), the moving party must establish that the Court has overlooked or misapprehended the relevant facts or misapplied the controlling principles of law.

In their Motion to Reargue, 420 Kent asserted that the Court had overlooked that the insurance procurement provision contained in the fence rental agreement between 420 Kent and US Fence was unenforceable as it included the following provision:

“The Customer [420 Kent] shall obtain… the forms and amounts of insurance coverage set forth in this Rental Agreement from an insurance company approved by [US Fence]. Each policy of insurance shall name [US Fence]… as additional insureds… This insurance shall, at a minimum, provide coverage in the event of death, injury, or casualty to property, whenever such shall occur, arising out of, resulting from, or related to the use of Equipment by [420 Kent].”

420 Kent argued that since the agreement did not specify the forms and amounts of coverage that 420 Kent was required to procure for US Fence, such a provision was unenforceable as the parties had not agreed on its material terms.  Applying contract law principles, the Court held that the fence rental agreement unequivocally obliged 420 Kent to procure coverage in the event of injury AND name US Fence as an insured.  Although 420 Kent had obtained insurance coverage, they failed to name US Fence as an insured on their policy.  Accordingly, the Court found that US Fence was entitled to Summary Judgment on this issue, and 420 Kent must indemnify US Fence for any amount allowed by their insurance policy limits.

The Court also reaffirmed its denial of 420 Kent’s claims for common-law indemnity.  Generally, a property owner is not vicariously liable for the negligent acts and omissions of an independent contractor hired to perform work.  However, an exception applies for property owner liability when an independent contractor’s negligence creates a dangerous condition on a sidewalk or public highway.  Under this exception, the property owner adjacent to a public sidewalk may be vicariously liable for independent contractor negligence unless the property owner can establish that they are free from negligence as a matter of law and did not direct, supervise, or control the construction work that led to the injury.  In this case, Plaintiff was injured on that portion of Defendant’s property which is adjacent to a public sidewalk of a park. Thus, 420 Kent must also prove that they lacked constructive notice of the alleged dangerous condition caused by the fence and that US Fence’s sole negligence caused the Plaintiff’s injury.

While 420 Kent did establish that US Fence had the authority to direct, supervise, and control the fence installation and removal project, the Court held that 420 Kent failed to prove that it was free from negligence as a matter of law. Specifically, 420 Kent did not establish they lacked constructive notice of the alleged dangerous condition.  In other words, a triable issue of material fact exists regarding whether the alleged dangerous condition existed for some time before the accident and whether 420 Kent had notice of the same.

New York practitioners are encouraged to review this opinion, as the denial of 420 Kent’s Motion to Reargue emphasizes that an owner of property adjacent to a public sidewalk can be found vicariously liable for dangerous conditions on their property even when the property is directly controlled or managed by a third-party contractor.  Additionally, courts are likely to enforce insurance procurement provisions when it is unequivocally clear that it is the property owner’s obligation to name the contractor as an insured, even if such provisions lack specific details regarding coverage forms and amounts.

The Supreme Court of N.Y. Denied Cross-Summary Judgment Motions and Found that Paint Left on Stairway Constitutes an Issue of Material Fact as to Causation

By: Uyen Nguyen, Law Clerk
Edited By: Nuo (Norman) Jiang, Esq.

The Supreme Court of the State of New York (“NY Supreme”) recently denied Plaintiff Donna McKnight’s (“Plaintiff”) and Defendant New York City Transit Authority’s (“Defendant”) Motions for Summary Judgment in the case McKnight v. N.Y.C. Tr. Auth., 2024 N.Y.L.J. LEXIS 2369.  Plaintiff brought said personal injury action against Defendant NYC Transit Authority for injuries sustained on August 22, 2019, when Plaintiff slipped and fell on a stairway at the Canal Street Station in Manhattan, NYC.  Plaintiff alleged that wet paint negligently left or applied by Defendant on the stairway caused her to fall.

Plaintiff moved for Summary Judgment, and Defendant NYC Transit Authority cross-moved for Summary Judgment.  The Court denied Plaintiff’s Motion on the basis that Plaintiff’s expert opinion failed to address Plaintiff’s allegations about the wet paint and did not provide evidence such as measurements, testing, clear photographs, or empirical data to support Plaintiff’s claims.  The Court then denied Defendant NYC Transit Authority’s Motion on the basis that Defendant failed to establish that Defendant was entitled to judgment as a matter of law.

The Court and parties did not dispute that Defendant NYC Transit Authority, as leaseholder, owes their riders a duty of care to keep the NYC transit stations in a reasonably safe condition.  It is also uncontested that the yellow paint allegedly encountered by Plaintiff on the Canal Street Station stairway was Defendant’s paint.  The Court refined the issue as whether the wet paint condition complained of by Plaintiff was a proximate cause of her injury and whether Defendant NYC Transit Authority was negligent.

To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.  In opposition, the non-moving party must show that there are genuine issues of material fact which need to be decided at trial.

Generally, to establish a prima facie case for negligence, a plaintiff must show (1) that a defendant owed a duty of care, (2) that the duty was breached by that defendant, (3) that said breach of duty caused plaintiff’s injury, and (4) that plaintiff suffered damages.  Specifically, in a New York slip and fall case, to impose liability on a defendant, a plaintiff must show that a defendant either created a dangerous condition or had actual or constructive knowledge and failed to address it.

Here, the Court’s opinion helpfully pointed out numerous deficiencies in Plaintiff’s and Defendant’s Motions for Summary Judgment.

Plaintiff argued that the wet paint on the stairway was dangerous and slippery and extended more than four inches, and thus violated Defendant NYC Transit Authority’s internal guidelines.  Plaintiff also offered two theories about Defendant’s negligence: that the paint caused her to slip and fall, and/or that Defendant’s failure to apply anti-skid materials caused her to slip and fall.  However, Plaintiff did not offer any evidence demonstrating the actual conditions of her fall, such as photos showing the actual dimensions of the alleged paint condition.  Further, Plaintiff’s expert architect’s report was also criticized in that the expert only stated that the paint is slippery because it did not contain anti-skid material but failed to demonstrate how such a conclusion was reached, and failed to cite or reference any regulations or industry standards as support.  For these reasons, the Court denied Plaintiff’s Motion as Plaintiff failed to establish that there is no genuine dispute of material facts and that Plaintiff is entitled to judgment as a matter of law.

Meanwhile, the Court also dismissed Defendant’s Cross-Motion for Summary Judgment, holding that Defendants had not met their burden to show their lack of negligence was not the proximate cause of Plaintiff’s injury as a matter of law.  Additionally, the Court also pointed out that to successfully oppose a plaintiff’s motion for summary judgment, it is insufficient for a defendant to simply identify problems or issues with a plaintiff’s negligence case; defendants must still establish that they are independently entitled to judgment as a matter of law based on the undisputed material facts.

New York practitioners are encouraged to review this Opinion, as the denial of both Motions helpfully pointed out several necessities to observe when filing and opposing a Motion for Summary Judgment in New York.

 

The New N.Y. C.P.L.R. § 2106 Amendment: A Game Changer

Do you need an affidavit in support of a motion for summary judgment, but your client is delaying returning the document because he or she does not have a notary readily available? Are you on trial and need a business record produced pursuant to a subpoena to be accompanied by a certification in the form of an affidavit and the custodian of the records tells you that there is no notary in their office? Do you have clients in rural areas who find themselves in the burdensome process of finding a notary to sign an Affidavit of No Excess Insurance? Look to the new N.Y. C.P.L.R. § 2106 to save the day.

Prior to its new amendment enacted on January 1, 2024, N.Y. C.P.L.R. § 2106 allowed a witness to submit an affirmation, which is an unnotarized sworn statement, in limited situations where the witness was signing the statement overseas or was either a lawyer, physician, osteopath, or dentist. All other witnesses needed to submit sworn statements in the form of notarized affidavits.

A law signed by New York Governor Hochul in October 2023, amended the C.P.L.R. to allow affirmations from any person, bringing New York civil practice in line with Federal practice, where unnotarized declarations are used pursuant to 28 U.S.C. § 1746, as well as with numerous states that have already adapted this standard such as Pennsylvania and New Jersey.

The new N.Y. C.P.L.R. § 2106 allows any person to submit an affirmation in lieu of an affidavit, “with the same force and effect” that the affidavit would carry. By submitting an affirmation instead of an affidavit, the need for documents to be signed before a notary public is eliminated. The statute provides that the affirmation shall be in substantially the following form:

I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)

As for affirmations signed outside New York State, it appears that affirmations that are in compliance with the § 2106 statute should be considered without the need to comply with the provisions in N.Y. C.P.L.R. § 2309(c) requiring a Certificate of Conformity. Nonetheless, practitioners should proceed with caution until there is appellate authority on this matter.

Another practical concern is how rapidly court clerks and court staff will become aware of the rule change. It is anticipated that there may be some risk that unnotarized affirmations from non-attorneys could be erroneously rejected. However, for the foreseeable future, this new statute is a great procedural tool to simplify the execution of certain documents without the need for a notary public.

Respondent Ordered to Provide Petitioner with Information About Identity of the Prospective Defendants Necessary to Frame a Complaint

In Matter of Morquecho v. HMH Architectural Metal & Glass, 2024 N.Y. Misc. LEXIS 423 (N.Y. Sup. Ct. 2024), the Supreme Court of New York, Kings County, addressed whether a respondent must be compelled to disclose necessary information against a party that the Petitioner wants to sue.

Eduardo Andrade Morquecho was an employee of HMH Architectural Metal & Glass. On August 21, 2023, he approached a delivery truck that arrived on the premises to assist with unloading the delivered material. As he began unloading, some of the material fell from the truck and injured him. Morquecho sought to bring a suit against the trucking company but lacked the necessary information including the name and address of the company. His employer HMH refused to share this information and assist in filing suit. In light of this refusal, Morquecho filed a petition seeking an order of Disclosure for Purposes of Bringing and Action Pursuant to CPLR Section 3102 (c).

CPLR Section 3102 (c) provides, “Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order.” Morquecho asserted that disclosure of the information concerning the accident was patently necessary to facilitate his suit against the delivery truck company. HHM did not oppose the petition.

In considering pre-action disclosure requests, the Court noted that the order mandating pre-action disclosure must be narrowly tailored. It relied on Mattocks v. White Motor Corp., 258 AD2d 628 (2d Dep’t. 1999), which provides that, “there should be full disclosure of all material and necessary in the prosecution or defense of an action.” The Court noted that in granting pre-action disclosure requests, the allegations of a prospective cause of action and the limited nature of the disclosure request must be considered. In addition, the Court relied on Leff v. Our Lady of Mercy Academy, 150 AD3d 1239, 1240 (2d Dep’t. 2017) where the Appellate Division granted pre-action disclosure in order “to allow a plaintiff to frame a complaint and to obtain the identity of the prospective defendants.”

In granting Morquecho’s Petition, the Court observed that HMH’s current refusal to disclose relevant information clearly hindered Morquecho’s ability to sue the company that contributed to his injuries. Therefore, the Court ordered disclosure of the incident report and the name and address of the delivery truck company.

New York Appellate Court Applies N.Y. Labor Law § 240(1) to Below-Grade Excavation Injuries

The Appellate Division of the Supreme Court of New York recently reversed a Supreme Court of New York, New York County decision in which it contemplated whether elevation risk analysis under N.Y. Labor Law § 240(1) applies to a cave-in related accidents at a below-grade excavation. In Rivas v. Seward Park Housing Corp., 195 N.Y.S. 3d 188 (App. Div. 2023), Plaintiff was a laborer employed by an excavation subcontractor hired to dig a trench in order to ascertain whether the defendant property owner’s external water pipes were leaking. As Plaintiff and his coworkers reached the water pipes 12-feet below the surface, the hand-dug trench collapsed and buried Plaintiff thereby causing his injuries.

As a result of the incident, Plaintiff brought suit against various parties including the property owner, contractor, and subcontractor of a construction project. Plaintiff’s Complaint alleged a violation of N.Y. Labor Law § 240(1) for the lack of adequate shoring along the trench walls, which Plaintiff claimed would have prevented the cave-in.

N.Y. Labor Law § 240 is known commonly as the “scaffold law” and states, in relevant part:

All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.

Countering Plaintiff’s allegation of the lack of shoring, defendant contractor’s foreman recalled that plywood shoring was used in the subject trench and was continuously moved as the project progressed. The foreman also disputed the depth of the trench and noted that it was only six feet deep as opposed to Plaintiff’s allegation that the trench was twelve feet deep.

Relying on Labor Law § 240(1), Plaintiff moved for Partial Summary Judgment as to the issue of the liability of all defendants. In so moving, Plaintiff’s motion was supported by deposition testimony and expert opinions that both claimed that the makeshift shoring was inadequate to protect Plaintiff from the elevation-related hazards posed by the trench. Defendant property owner and defendant contractor filed cross-motions for Summary Judgment, arguing that Labor Law § 240(1) did not apply to cave-in cases.

The Trial Court granted Defendants’ cross-motions for Summary Judgment on the grounds that a cave-in at an excavation site does not present an elevation-related risk within contemplation of Labor Law § 240(1). In so reasoning, the Court cited past Appellate Division opinions as support.

On appeal, Plaintiff contended that Labor Law § 240(1) should apply to situations where an individual is working below surface grade and a lack of protection results in objects falling from above due to improper securing of the below surface grade site. Plaintiff highlighted the severe elevation difference between the depth of the trench and the top of the trench wall that collapsed causing the subject injuries. Plaintiff argued that this height differential required some sort of safety device above and beyond the inadequate shoring used on the date of the incident.

Having heard Plaintiff’s reasoning, the Appellate Division found that even viewing the facts most favorable to defendants, there was a palpable, non-de minimis height differential at the time of the accident. The Court noted that there was more than one foot of space between the top of Plaintiff’s head as he knelt in the trench and the top of the trench wall, which it believed was a significant height differential. For this reason, the Appellate Division agreed that the trench wall needed a shoring device to protect Plaintiff in light of this height differential. The Court did not agree with the defendants’ argument that a cave-in was a normal construction site danger and instead reasoned that Plaintiff’s injuries were a direct result of the elevation-risk cited by Plaintiff.

For these reasons and others stated on the record, the Appellate Division found that the defendant property owner and contractor failed to adequately protect Plaintiff from a reasonably preventable gravity-related accident. Therefore, the Court found the defendants to be liable under Labor Law § 240(1). In so deciding, the Appellate Division expanded the scope of Labor Law § 240(1) protections beyond height related incidents and into depth related incidents.

The Supreme Court of New York Revisits Assumption of Risk Doctrine in the Context of Motocross Racing

Written by: Ruhani K. Aulakh, Law Clerk
Edited by: Patrick J. Graham, Esq.

The Supreme Court of New York, Appellate Division recently clarified the assumption of risk doctrine as it relates to sports participants.  In Fritz v. Walden Playboys M.C. Inc., 2023 NY Slip Op 03524 (June 29, 2023), plaintiff Joseph C. Fritz was practicing at the Walden motocross racetrack.  Fritz, who had years of experience riding motocross, took his first practice lap and noticed something was wrong with the track when the back of his bike kicked up irregularly.  Although he knew something was wrong with the track, Fritz performed a second practice lap to see what the issue was.  On this second practice lap, Fritz landed in a deep powder and was unable to gain control of his bike.  As a result, Fritz was thrown over the handlebars and sustained several injuries.

Fritz filed a suit against defendant, Walden Playboys M.C. Inc. (“Walden”).  After discovery, Walden moved for summary judgment, arguing that Fritz’s claims were barred by the assumption of risk doctrine.  Fritz opposed the motion, arguing that Walden created an unreasonable risk of harm by failing to address a hole in the track that was caused by negligent grooming of the track.  The lower court denied Walden’s motion, and Walden appealed the decision.

The Supreme Court reversed the lower court’s decision, holding that Fritz did not set forth a genuine issue of material fact sufficient to defeat summary judgment.  In coming to this conclusion, the Court first looked at the primary assumption of risk doctrine which states that a participant consents to risks that are obvious.  Further, to determine whether the assumption of risk doctrine applies, courts assess the participant’s knowledge of the dangerous condition against the background of his or her skill and experience.  If the moving party satisfies its burden to show that a party assumed the risk, the non-moving party is then required to show that the party unreasonably enhances the danger or created conditions which were unique compared to those inherent in the activity.

The Court looked to both Fritz’s and Walden’s testimony to determine whether Fritz set forth a genuine issue of material fact.  The record established that Fritz was a motocross expert with several years of experience on different racetracks, including the Walden racetrack.  Fritz was aware that holes develop on a racetrack but testified that the dirt used to fill in the hole was different than anything he had seen before.  Walden provided testimony of several club members who collectively testified that the dirt used in repairing the hole came from the pits on the track’s property and that the conditions of the track change every five to ten minutes.  Walden’s expert witness further echoed the club members’ testimony, explaining that motocross riders consistently encounter changing conditions that are unavoidable.  The Court held that such testimony was sufficient to satisfy Walden’s burden.

Since Walden satisfied its burden to show that the non-moving party assumed the risk, Fritz then had to demonstrate that Walden unreasonably enhanced the danger or created a condition above those inherent in the activity.  Fritz argued that because of the location of the hazard, he would not have been able to see the hazard without driving back onto the track.  As such, Fritz explained that he had to “feel out” the track on a second lap to determine what the issue is.  The Court held that it was clear Fritz was aware of an unusual condition on the track, but nevertheless continued with his activity.  Therefore, Fritz assumed the risk of riding on a hazardous track.

The Court held that Fritz did not raise an issue of material fact as to whether Walden concealed or unreasonably increased the risks to which Fritz was exposed.  As such, the Court reversed the lower court’s order and granted Walden’s motion for summary judgment.

The Supreme Court of New York Relieves an Insurer of its Duty to Defend and Indemnify for an Occurrence Outside of Defined Coverage

The Supreme Court of New York, New York County recently had occasion to interpret the terms of an insurance policy and in doing so, ordered that an insurance company was not responsible for defending and indemnifying an insured under the terms of the subject policy.

In MIC Gen. Ins. Corp. v. Rashid, 2023 NYLJ LEXIS 654 (Mar. 6, 2023), Plaintiff, MIC General Insurance Corp. (hereafter “Plaintiff”) sought a declaratory judgment decreeing that it was not responsible to defend and indemnify Defendants, Rezia Rashid and Nawroz Zulfikar (hereafter “Defendants”) as a result of a slip and fall incident involving a third party on Defendants’ property. That third party, Ethel Cardoba, slipped and fell on a sidewalk outside of an insured multi-family residence that Defendants believed to be an “insured location” under the terms of their policy with Plaintiff.

The policy issued by Plaintiff provided coverage for “occurrences” to which “coverage applies,” which included bodily injuries suffered at an “insured location.” The policy’s liability coverage section failed to elaborate as to which occurrences were covered and whether coverage would apply to “residential premises” as one of many types of “insured locations” enumerated in the policy definitions.

Plaintiff filed an unopposed Motion for Default Judgment, which asked the Court to determine that Plaintiff had no responsibility to provide defense and indemnification to Defendants in the underlying personal injury matter brought by Cardoba. In support of the Motion, Plaintiff advanced two arguments. First, Plaintiff argued that the underlying personal injury action is outside the scope of the policy’s coverage. However, the Court disagreed with this argument because the policy expressly stated that Plaintiff would cover the costs of a defense and judgment should suit be brought against an insured for damages because of bodily injury “caused by an ‘occurrence’ to which this coverage applies …” The court specifically found that the policy’s liability coverage section did not limit coverage to “insured locations” or “residential premises” and that while it was reasonable to infer that the sidewalk at issue would not be an “insured location” or a “residential premises,” the absence of an express limitation to coverage under these terms ruled the interpretation of the policy. The Court believed that to make such an inference would be to improperly add meaning to the policy’s explicit language.

Despite the Court rejecting this first argument, it ultimately sided with Plaintiff and held that Plaintiff was not obligated to defend and indemnify Defendants. In so ruling, the Court analyzed the language of the policy as applied to the facts available. In its analysis, the Court found that an “insured location” included one of many types of premises, one of which covered “residential premises.” The policy at issue was purchased by Defendants to cover a three-family dwelling consisting of three separate apartments. However, the policy defined a covered “residential premises” as a “one-family or two-family dwelling.” Given that the subject premises was not a one-family or two-family dwelling, the Court found that it did not qualify as a “residential premises” under the policy’s definition and therefore did not qualify as an “insured location.”

Thus, the denial of defense and indemnification was proper given this express exclusion of Defendants’ premises. In so ruling, the Court refused to give additional meaning to the express terms of an insurance policy and instead, accepted Plaintiff’s argument relying on the explicit exclusion of coverage for the property at issue. The Court also reaffirmed the long-standing principle in New York that the duty to defend and indemnify does not attach simply where a policy is held by an insured and where the insured seeks coverage for incidents beyond the scope of the policy.

New York Supreme Court Reaffirms Contractor’s Burden in Moving for Summary Judgment Regarding Alleged Dangerous Condition on Public Sidewalk

The Supreme Court of New York, New York County recently denied an electrical contractor’s motion for summary judgment where that contractor failed to sufficiently establish that it did not cause or create the allegedly dangerous condition that caused the plaintiff’s fall. In Bernfeld v. CRC Assoc., Inc., 2023 N.Y. Misc. LEXIS 249 (January 17, 2023), plaintiff, Lawrence Bernfeld, exited his apartment building located on West 79th Street in Manhattan when he stepped out onto the sidewalk and slipped on a patch of ice next to a fire hydrant approximately 40 to 50 feet from the intersection of West 79th Street and Amsterdam Avenue. He would later testify that he did not see the icy condition prior to his fall, but that there was construction taking place on the roadway and sidewalk outside of his building. The porter and building superintendent at plaintiff’s building each offered testimony stating that a hose was attached to the fire hydrant at issue on the date of the accident by two unknown workers and that the hose and hydrant were actively leaking water.

Defendant, CRC Associates, Inc. (hereafter “CRC”) was hired by the Metropolitan Transit Authority to perform electric work related to the installation of fare collection machines, which would require CRC to lay wiring under the sidewalk for the fare machine installation. CRC’s owner testified that he subcontracted sidewalk demolition, excavation, restoration and site protection work to defendant, Primetime Excavating (hereafter “Primetime”). Primetime’s president testified that it did perform this concrete work and that it would have reason to use water at a job site to clean its tools. Primetime’s job site superintendent and safety coordinator testified that when Primetime had occasion to use water for its concrete saws, it had water tanks on its trucks, which left it with no reason to extract water from the fire hydrant on the date of the accident.

Given the testimony of its president and testimony offered by Primetime representatives, CRC moved for summary judgment arguing that it did not use the fire hydrant on the date of the accident and could not have created the allegedly dangerous condition that caused Plaintiff’s fall. The Supreme Court began its analysis of CRC’s motion by noting that “where a contractor working on a public sidewalk or roadway establishes that it did not cause or create the allegedly dangerous condition on which the plaintiff fell, summary judgment in favor of that contractor is appropriate.” see Camacho v. City of New York, 135 A.D.3d 482, 482 (1st Dept 2016); Levine v. City of New York, 101 A.D.3d 419, 420 (1st Dept 2012). CRC’s president specifically testified that CRC employees were working on Amsterdam Avenue on the date of the accident and its electricians would have no reason to use water in performing their work at this location. Primetime’s job site superintendent added that he was unaware of any need for CRC’s electricians to use water on the date of the accident.

However, the Court denied CRC’s motion for summary judgment without considering the opposition filings because it found that CRC failed to meet its burden of proof and triable issues of fact still existed. Specifically, the Court found that the testimony of CRC’s president was insufficient because he was not present at the job site on the date of the accident and lacked personal knowledge as to CRC’s actions or inactions. CRC did not offer any testimony from the two electricians on site on the date of the accident, each of which may have had personal knowledge superior to that of CRC’s president. Moreover, the Court found that Primetime’s superintendent could not definitively state whether CRC employees used the hydrant on the date of the accident, which was also insufficient to prove that CRC did not create the alleged dangerous condition. Moreover, the Court noted that even if CRC had met its burden of proof, the testimony of the porter and building superintendent for Plaintiff’s building, stating that they saw a hose dripping water from the fire hydrant on the date of the accident, created a triable issue of fact sufficient to defeat CRC’s motion for summary judgment.

Ultimately, the Court’s decision hinged on the sufficiency of the defendants’ collective testimony and the lack of personal knowledge supporting that testimony. Without even considering the opposition filings, the Court took a firm stance on the unreliable nature of evidence lacking personal knowledge and its use in dispositive motion practice.

The Supreme Court of New York Reaffirms the Limited Scope of Pre-Action Disclosure

The Supreme Court of New York, New York County recently reaffirmed the purpose and scope of pre-discovery disclosure in a petition to disclose surveillance footage. In Villani v. Rite Aid of NY, Inc., 2022 NY Slip Op 32949 (September 2, 2022), petitioner, Joanna Villani, received a COVID-19 booster shot at a Rite Aid location in Manhattan. Villani, who had a history of vasovagal, requested to sit in the vaccination room so as to avoid standing and fainting, but she claimed that the Rite Aid pharmacy staff informed her that the area was too busy and that she would need to take a seat in the nearby “alcove area.” Thereafter, Villani claims that she began to feel faint and called out for help to no avail before standing up, passing out, and hitting her head on the pharmacy counter. As a result of the fall, she claimed to have suffer severe facial and eye injuries.

Villani filed a petition seeking disclosure of the in-store surveillance video capturing the incident prior to filing her complaint so that she could better frame the facts of her complaint. Specifically, Villani sought to identify which Rite Aid staff members were present at the time of the incident in order to name those staff members as defendants responsible for her injuries.

In response, Rite Aid of NY, Inc. argued that Villani’s request was an inappropriate pre-discovery disclosure request because Plaintiff’s complaint could adequately allege enough facts to initiate legal action without the need for the surveillance video prior to discovery.

The Supreme Court agreed with Rite Aid of NY, Inc. and denied Villani’s petition. In so ruling, the Court cited Holzman v. Manhattan and Bronx Surface Tr. Operating Auth., 271 A.D.2d 346, 347 (1st Dept. 2000) for the proposition that pre-action disclosure is not appropriate where a plaintiff already has sufficient information to frame a meritorious complaint. The Court specifically noted, “pre-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists and is only available where a petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong…” Bishop v. Stevenson Commons Assocs., L.P., 74 A.D.3d 640, 641 (1st Dept. 2010).

The Court reasoned that Villani had all the information needed to file a meritorious complaint, including when the incident happened, where it happened and what details led to the incident taking place. Villani knew which defendant she would name in a complaint and which cause of action she would use to pursue her claims. Villani’s desire to identify specific Rite Aid employees would be better served through a plenary action for the disclosure of those names rather than the production of the surveillance video, which would be an inefficient means to identify those potential defendants. The Court noted that Villani’s request for the surveillance footage was nothing more than a normal discovery request that may, at most, require a letter to Rite Aid of NY, Inc. requesting that the video be preserved for later production in discovery.

Ultimately, the Court reaffirmed the purpose and scope of pre-action disclosure and petitions seeking the same as a means to identify facts and causes of action that will lead to a meritorious complaint when those facts and causes of action are not already known to a potential plaintiff. When those facts giving rise to a potential complaint and the causes of action to be used are already clear to a plaintiff, pre-action disclosure is neither necessary nor appropriate.

Capehart Blogs

Firm News
Capehart Scatchard Celebrates 150th Anniversary
NJ School Law
Appellate Division Upholds Finding of HIB for Comments Made in Snapchat Group Chat
Insurance
Broadly-Read Insurance Policy Exclusion Allows Insurer to Deny Coverage for Pharma Company Due to Chairman’s Alleged Self-Dealing Scheme by New Jersey Supreme Court

Appellate Division Upholds Finding of HIB for Comments Made in Snapchat Group Chat

Broadly-Read Insurance Policy Exclusion Allows Insurer to Deny Coverage for Pharma Company Due to Chairman’s Alleged Self-Dealing Scheme by New Jersey Supreme Court

Parents’ Constitutional Rights to Access School Property: Court Dismisses Due Process and First Amendment Claims

Subscribe to Blog Updates

Categories

Tags
Alternative Energy Alternative Energy - Solar Alternative Energy - Wind Appellate Division automobile accident automobile insurance Burlington County Bar Association Cannabis Law Charity constructive notice coverage data privacy data security dismissal Diversity & Inclusion Committee duty of care employees employers Employment Law evidence insurance Liability Litigation Litigation Quarterly Lorman Millennium Seminars NBI negligence New Jersey Workers' Compensation Act New York Law NJ Law notice Open Public Records Act Pennsylvania Law personal injury Public Entity Newsletter Real Estate and Land Use school law slip and fall statute of limitations summary judgment Tort Claims Act trip and fall Workers' Compensation Workers' Compensation Newsletter