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Labor Law Claims Against Husband Dismissed but Allowed Against his Wife – Homeowner Exemption

In an unusual Labor Law case, Judge Billings dismissed a Labor Law §§240(1) and 241(6) claims against the owner of a one family dwelling, but granted the plaintiff’s motion to assert the same claims against the owner’s wife. Plaintiff in Pizarro v. Lignelli, 102474/2011, NYLJ 1202641219115, at *1 (Sup. NY, Decided January 6, 2014) was injured while renovating defendant’s single family house. Plaintiff also claimed violations of Labor Law §§200 and common law negligence. Defendant moved for summary judgment based on the exemption under the Labor Law for owners of 1-2 family dwellings, when the owner contracts for, but does not supervise, direct, or control the construction to which the Labor Law applies. In response, plaintiff cross-moved to add the same claims against defendant’s wife. The evidence established the premises was a single family dwelling and that plaintiff fell 7-8’ off of a ladder without any safety devices. Defendant claimed…Read More

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Empire State Building Sues Photographer over Topless Viral Photograph – Seeks Punitive Damages

After purchasing tickets to the Empire State Building (“ESB”) observatory deck, Allen Henson, a photographer, took cell phone photos of a topless model who accompanied him. He later posted them to a social media site and they went “viral”. They can be seen at: http://www.nydailynews.com/new-york/boobs-photog-hit-1-1m-suit-article-1.1578135. In January 2014 Mr. Henson was served with a lawsuit by ESB seeking $100,000 in compensatory damages and $1 million punitive damages based on the legal theory than Henson’s cellphone photo shoot was “unlawful and tortious and caused ESB damage to its business and its reputation as a safe and secure family friendly tourist attraction.” ESB claimed that Henson was guilty of tortious trespass. ESB did not name the model who appears to us to have had at least equal responsibility. While it is understandable that ESB would not want topless women mixing with tourists unaccustomed to public nudity, ESB’s contention that Henson’s actions constituted…Read More

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Little League Baseball Coach Sues 14 Year Old Player on his Own Team For Throwing Helmet

A California Little League baseball coach Alan Beck has sued a 14-year-old he was coaching as well as the child’s parents, alleging that after getting the game-winning hit the boy tossed off his helmet as he was running toward home plate which allegedly struck Beck’s Achilles tendon and tore it. The complaint asks for $500,000 in pain and suffering and $100,000 in lost wages and medical bills and also named the boy’s parents who have reportedly already spent $4,000 defending the action. The case has no merit and is frankly, suspicious. Obviously the child is judgment proof so the case is really against the parents. However, the law is clear, parents are not vicariously liable for the torts of their children absent certain defined exceptions such as if the child was working for the parents or there was some type of agency between them or where the parents encouraged the…Read More

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Civil Liability for Allowing a Friend to Drive Drunk?

Two 17-year-old boys were arrested in Glastonbury, CT last month and charged with reckless endangerment in the second degree on the ground that they knew their friend Jane Modlesky, also 17, was too drunk to drive when she got behind the wheel of an SUV in July before crashing into a tree and dying. Modlesky had left a party where alcohol was being served to over 100 minors with four 17 year old boys. Although the SUV belonged to the parents of one of Modlesky’s friends, the car was initially not being driven by Modlesky. One of the boys dropped himself and a passenger off before handing the keys to the third boy who drove to his own house, where the two accused boys got out and handed the keys to Modlesky. They apparently did so without having the opportunity to see her drive. One wonders if there had been…Read More

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Court Of Appeals Changes Standard For Collateral Estoppel

On December 10, 2013 the Court of Appeals, in a stunning unanimous decision, reversed its own ten-month old determination, that an individual found able to return to work by the Worker’s Compensation Board (WCB), was precluded from re-litigating the issue in a subsequent civil suit. The plaintiff in Auqui, Jose Verdugo, was injured on December 24, 2003 when a sheet of plywood fell from a building and struck him, causing head, neck, and back injuries. At a full WCB hearing, in which both sides were permitted to introduce expert medical testimony subject to cross examination, the administrative law judge found that Verdugo wasno longer disabled as of January 24, 2006. On review, the Worker’s Compensation Board panel affirmed the finding. Meanwhile, Verdugo’s wife, acting as her husband’s guardian, brought a lawsuit against the owner of the premises[1]. The owner moved to preclude the plaintiff from “re-litigating” the date his disability…Read More

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Will Jonathan Martin Sue the Miami Dolphins?

Jonathan Martin, an offensive tackle for the Miami Dolphins left the team in November and checked himself into a hospital for emotional injuries he claims he suffered at the hands of a teammate and fellow offensive lineman Richie Incognito and other team mates. The Dolphins spent time in crisis management mode and announced that Mr. Incognito will never play for the team again and it is also clear now that neither will Mr. Martin. What was so compelling about the story is that Mr. Martin is not the typical victim of bullying. As a starting NFL lineman after a stellar career playing with Andrew Luck at Stanford, Mr. Martin was hardly someone with a weak physical or mental disposition. Whatever happened in that locker room apparently was pretty extreme. There really is no reason to doubt Martin’s intentions since he clearly has more to gain playing football for the Dolphins…Read More

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Driver with Bikini Emergency Found Blameless in Fatal Crash

Appellate Division Expands Scope of the “Emergency Doctrine” Although the fact pattern of Pelletier v. Lahm, 2013 WL 6084204, 2d Dept., 2013 seems like it was cast from the characters in a lurid reality television show, the case appears to expand the use and scope of the emergency doctrine which in skilled hands can lead to the successful defense of an auto case even where the defendant admits to statutory negligence. Whereas the typical emergency doctrine case involves a driver attempting a defensive maneuver as a result of a car crossing into the defendant’s lane from the opposite direction, Pelletier potentially expands the doctrine to situations involving surprise and/or embarrassment relating to the antics of children and childlike adults. In Pelletier, defendant Brittany, a bikini clad 19 year old was driving a girl friend and two boys home from a weekend at the Jersey Shore. One of those boys, Brandon,…Read More

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G&S Recovers $2.037 Million For Defense Costs Related to 2008 Crane Accident Case

This Declaratory Judgment Action arose out of the tower crane collapse on May 30, 2008 at 91st and First Avenue which resulted in multiple deaths and millions of dollars in property, person injury and business interruption claims. We represented the owner of the crane New York Crane & Equipment and it insurance carrier against the lessee and operator of the crane Sorbara Construction Co. and its insurance carrier. Despite Sorbara agreeing to provide insurance to NY Crane in the crane rental agreement, Sorbara’s carrier refused, claiming that NY Crane was not entitled to insurance because it had been indicted for criminally negligence homicide for allegedly putting a defective crane in service and also because the accident had not occurred while Sorbara had been working “for” NY Crane as required by the policy. NY Crane and its principal were acquitted of all charges in the criminal case leaving only the issue…Read More

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Worker Falls Into 45 Gallon Kettle of Soup and Suffers 2d and 3rd Degree Burns – G&S Defends Restaurant

Plaintiff worked for a company that cleaned industrial exhaust systems. Our client operated a restaurant inside the Manhattan headquarters of an international bank. Plaintiff’s employer cleaned the kitchen exhaust hood monthly on the first Friday of the month. They were hired by the building manager not by the restaurant. Plaintiff cleaned at night after the restaurant/kitchen was vacant. The building manager typically notified our client the day the exhaust hoods would be cleaned to give it the option to reschedule if the kitchen was needed for a night event and to make sure the kitchen was properly secured. However, in the months prior to the accident, the building manager had stopped providing the restaurant with notice. Without notice of the cleaning, the chef prepared an industrial sized kettle of broth to slow cook overnight. This was done bi-monthly to use in various dishes. The kettle sat directly underneath the exhaust…Read More

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Does Your Company Provide Coverage for Claims Against Chimpanzees?

On Monday, December 2, 2013, the NYT reported that an animal rights group The Nonhuman Rights Project filed a writ of habeas corpus on behalf of Tommy, a chimpanzee in Fulton County, N.Y. Although there are laws that protect animal welfare, this is the first time there has been an attempt to establish that a non-human animal has a right to some measure of “liberty.” The head of the Project is seeking to have New York recognize Tommy as a legal person. The Project says the chimp “is being held captive in a cage in a shed at a used-trailer lot.” They are seeking to have the court place him in one of the several U.S. chimpanzee sanctuaries. The NYT reports that the petition is supported by a “70-plus-page memo rich with legal, scientific and philosophical references” that argues that captive chimps are “enslaved”. The Project argues a chimp is…Read More

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